The Weakest Link of Kosovo's Democracy - KFOS

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Draft laws of judiciary were the object of several working groups 1 and donor contribution
from 2004 onwards. Despite such long and painful treatment, in many cases the
content of this legislation was interrelated to political compromise 2 , apart from the
legal one.
Differently from the period before the declaration of independence, when local institutions
depended on the will of the SRSG to promulgate legislation, approval of this
infrastructure depends expressly and only on the will of local institutions, only unless
there is a non-public agreement beyond the content of legal acts that “minimizes” the
authority of our institutions contrary to provisions of the Comprehensive Proposal of
Mr. Ahtisaari on the final settlement for Kosovo and the Constitution of the Republic of
Kosovo.
Only in March 2010, the Government of the Republic of Kosovo approved the Law on
Courts, which was submitted to the Assembly of Kosovo. In essence, it deals not only
with organic issues of the foreseen reform but also with possible political indications
that derive from constitutional obligations, but not only this. Whereas other laws, although
there are promises that they will be approved in the Government – this has
not happened yet. Months later, institutions were able to approve the Law on Public
Prosecutor’s Office, the Law on Judicial Council and the Law on Prosecutorial Council.
But, re-evaluation was not covered by the applicable legislation in Kosovo and it is
regulated by old UNMIK regulations that caused legal conflict in their application and
absence of legal security for interested parties.
obstructions and procrastinations
Despite insistence for years and efforts to coordinate processes in this sector, such as
re-evaluation of judges and prosecutors, as well as continuous professional education
for judges and prosecutors 3 , absence of systematic legislation of judiciary posed obstruction
for the beginning of every reform process of this sector in Kosovo.
consequences
As consequence of lack of preparation of this legal infrastructure in time, for years
now:
a) There was an absence of systematic acts of functioning of one of the
main state branches, the judiciary
b) The process of institutional reform could have not begun without this
legislative infrastructure but it has started;
1 Initially they were assisted by projects of the USAID, NCSC as of 2004 onwards as well
as the project “Help to justice sector” of the European Commission from 2006 onwards.
2 Political compromise in this legislation includes referring to provisions of
Comprehensive Proposal of Mr. Ahtisaari on the final settlement of Kosovo as well as the
UN Report on Kosovo of 2008 so-called “the 6 point plan”, which, among other things, also
advances further decentralization of power in the area of judiciary.
3 In relation to this, see other parts of this paper on bar examination and the process of
re-evaluation of judges and prosecutors.