The inadequacy of human rights protection mechanisms in Kosovo and the role of the Ombudsperson
Although the protection of human rights is expressly mentioned in the Constitutional Framework for Provisional Self- Governance in Kosovo, promulgated through UNMIK Regulation 2001/9 on 15 May 2001, and that the protection of human rights was one of the reasons for the Security Council’s adoption of Resolution 1244 in 1999, there are still no proper existing legal mechanisms in place in Kosovo today to ensure such a protection of human rights in practice.
One problem is the lack of information to the general public about international human rights protection instruments contained in the Constitutional Framework. These are the Universal Declaration on Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols (ECHR), the International Covenant on Civil and Political Rights and the Protocols thereto, the Convention on the Elimination of All Forms of Racial Discrimination, the Conve ntion on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the European Charter for Regional or Minority Languages, as well as the Council of Europe’s Framework Convention for the Protection of Nationa l Minorities.
Despite the fact that through Chapter 3.2 of the Constitutional Framework, these human rights documents have been directly applicable in Kosovo for over three years now, the general public remains unaware of this fact because these instruments have still not been published and distributed in all three of Kosovo’s official languages, in particular in Albanian and Serbian. As also most judges, prosecutors and many lawyers are still completely unaware even of the existence of these conventions, their practical implementation into the Kosovo legal system remains a myth. In May 2004, the Ombudsperson raised this issue in a letter to the Prime Minister of Kosovo and urged him to give the highest priority to the publication and distribution of the above-mentioned international treaties.
On the other hand, the jurisdiction of the local courts, which in democratic systems are seen as the prime guarantor of citizens’ rights, has been limited by UNMIK Regulations in some important areas. One very important example for this are claims raised by persons who were the owners, possessors or occupancy right holders of residential real property prior to 24 March 1999 and who do not now enjoy possession of the property, and where the property has not voluntarily been transferred. Such matters have been placed under the sole jurisdiction of the UN Housing and Property Directorate (HPD).
Courts, which should constitute a main pillar in the protection of such rights, are thus to a considerable extent deprived of assuming such a role in Kosovo in an area of particular importance from the viewpoint of basic human rights protection.
Another obstacle to the establishment of a working human rights protection mechanism in Kosovo is the fact that claimants wishing to bring cases involving human rights violations to court against UNMIK as an institution, as well as against their property, funds and assets, are prevented from having these cases decided by courts due to the complete immunity enjoyed by UNMIK itself. While such an immunity of international organisations is necessary in order to ensure their effective operation, this general principle should be applied differently to the circumstances prevailing in Kosovo, where UNMIK fulfils the functions of a surrogate state. Nowhere in the world does a democratic state operating under the rule of law accord itself immunity from any administrative, civil or criminal responsibility. The same applies to KFOR.
According to Section 3 of UNMIK Regulation 2000/47, the SRSG, his deputies, the UNMIK Police Commissioner, as well as other high- ranking officials of UNMIK, are immune from local jurisdiction in respect of any civil or criminal act performed or committed by them in the territory of Kosovo, while the remaining UNMIK personnel, both local and international, are immune from legal process in respect of words spoken and all acts performed by them in their official capacity. Although the immunity of individual staff members may be waived, such waivers are discretionary. The problem of the immunity of UNMIK as an institution and of its staff members was addressed at length by the Ombudsperson in his Special Report No. 1, issued in April 2001, where, for the reasons stated above, the grant of immunity for UNMIK and KFOR was considered to be incompatible with international human rights standards. In June 2001, the then SRSG responded to this report noting that the matters raised in the report were under the active consideration of his office and that he would undertake further consultations with UN Headquarters and others before issuing a substantive response to the report. To the date of this report, there has been no such substantive response by UNMIK to this issue.
The above immunity leads to a certain unaccountability of UNMIK, as the UN itself does not provide for proper internal safeguards to ensure the legality of such actions.
Even if allegations concerning the commission of criminal acts are raised against members of UNMIK, in particular but not only members of UNMIK Police, the local prosecuting authorities are unable to investigate, nor are there any independent bodies that would be competent to undertake this task. No other mechanism in place in Kosovo today is capable to assure effective and proper investigations into such cases, as internal UNMIK Police investigations are by their very nature unable to constitute fully independent investigations and thus are not even sufficient to ensure a minimal level of compliance with international standards. Moreover, such investigations are not conducted in order to bring a person suspected of having committed criminal acts to justice, but are instead only aimed at initiating disciplinary proceedings against the respective police officer.
At the same time, it is impossible for UNMIK local staff to challenge employment decisions of UNMIK before Kosovo courts. These persons are thus under no judicial protection with regard to labour disputes. The same is still true for members of the civil service wishing to bring employment disputes aga inst the PISG. According to Section 11.1 of UNMIK Regulation 2001/36 on the Kosovo Civil Service, a civil servant who is aggrieved by a decision of the public authorities employing him may appeal against such a decision to the Independent Oversight Board of Kosovo, which is an autonomous unit located within the Ministry of Public Services. Although this UNMIK Regulation entered into force in December 2001, such a board has still not been constituted. In these circumstances, there is no appeals body for civil servants.
In cases where Kosovans become the victims of human rights violations committed by UNMIK as such or its staff members, there is thus no independent body with judicial character that could intervene or by which these persons could obtain some sort of redress for damages or injuries. Even if local courts in Kosovo cannot examine the legality of the conduct of UNMIK, there should be some special tribunal to at least provide the possibility of a judicial review of actions taken by UNMIK that affected the rights of local subjects or the labour rights of UNMIK local staff members. Section 7 of UNMIK Regulation 2000/47, which envisions the creation of Claims Commissions to settle certain third party claims for property loss or damage that arise from or may be directly attributed to UNMIK or its personnel, does not provide adequate mechanisms for the conduct of an independent, effective and proper inquiry into the merits of such claims and has thus so far been of rather limited help in this respect. The same applies to the KFOR Claims Commission.
This situation in general creates a paradox, whereby those entities that are in Kosovo to help preserve human rights and the rule of law are themselves not answerable to the very persons they are obliged to protect. It also raises issues concerning one of the most fundamental rights, namely that of the right to a court provided for in Article 6 para. 1 of the ECHR, which foresees that in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing before a tribunal established by law. The effects of the violent events of March have drastically highlighted the practical repercussions of this dilemma, as there does not appear to be any way in which individuals who suffered injuries and damages during these events could claim damages from UNMIK as a surrogate state responsible, in particular, for security and public order. This situation is untenable and excludes any possibility of invoking, for example, certain provisions of the still applicable Yugoslav Law on Obligations, under which public authorities are liable for certain damages and injuries caused by, inter alia, violent demonstrations as long as the organisers of the demonstrations or perpetrators of the respective crimes have not been identified. Such laws are robbed of their effect if the structures exercising state powers in Kosovo has absolute immunity before local courts.
The Ombudsperson, although not competent to investigate into complaints against KFOR, is currently the only legal instrument constituting a human rights protection mechanism. He has jurisdiction to oversee both the work of the UNMIK administration and the local provisional governing bodies, but there are still many practical and legal obstacles that keep him from exercising this mandate in the best possible way.
One of these has been the lack of adequate cooperation of UNMIK with the Ombudsperson Institution, in particular, but not only in cases involving UNMIK Police.
Although there has been an improvement in this cooperation, in particular since the violent events in March 2004, the practice of UNMIK in such matters is still far from being in compliance with Section 4.7 of UNMIK Regulation on the Establishment of the Ombudsperson Institution, which stipulates that the interim civil administration and any emerging central or local institution is obliged to cooperate with the Ombudsperson by supplying him with relevant information, documents and files.
Access to files may only be refused by the SRSG himself, provided that reasons in writing are given to the Ombudsperson. Other UNMIK authorities are thus not permitted to withhold any documents from the Ombudsperson and his staff, a fact which is apparently often not known to UNMIK staff members, in particular members of the UNMIK Police. There have been several cases during the reporting period in which members of the UNMIK Police have persistently refused access to certain files, a practice which has effectively blocked investigation proceedings in the respective cases.
On the other hand, while the SRSG has refused to grant access to a police file in one case for security reasons, while in other cases he has not responded at all, despite explicit requests for access on the side of the Ombudsperson Institution.
When dealing with different complaints and allegations against the PISG, the Ombudsperson faces two main problems: one is the fact that the Ombudsperson does not have at his disposal any kind of legal remedy, nor may he participate in court proceedings, even as a third party. The other problem is the frequent lack of adequate support from the UNMIK authorities when the local structures do not react to requests, including requests for various interventions or recommendations from the Ombudsperson.
The inability for the Ombudsperson to initiate or take part in court or any other legal proceedings results in part from gaps in the UNMIK Regulation on the Establishment of the Ombudsperson Institution, but also from the weaknesses inherent in the legal framework in force in Kosovo today, in particular the lack of a Constitutional Chamber or Constitutional Court. While the Ombudsperson may raise certain issues in a report and may recommend to the SRSG to change a certain practice or law, he cannot directly, by legal means initiate any procedure to ensure that an illegal situation be changed.
As regards the lack of adequate support by the UNMIK administration when dealing with the local government and administrative bodies, it is important to stress that such support is very much required in a situation where all institutions of the PISG still remain under the overall supervision of the SRSG, who, based on Security Council Resolution 1244, has the final responsibility for all of their actions and is at the same time responsible for the protection and promotion of human rights.
Unfortunately, cases where local institutions do not react to the Ombudsperson’s actions, or where their reaction is far from adequate, are still occurring on a much too freque nt basis. Although UNMIK is always informed about the Ombudsperson’s actions or requests regarding a subject that is under the direct competence of the PISG, UNMIK too often omits to take any visible form of action in support of the Ombudsperson in such cases.
As long as UNMIK does not respond to the issues raised by the Ombudsperson and fails to effectively ensure that the local institutions under its supervision react in an adequate manner to steps taken by the Ombudsperson, the effectiveness of the Omb udsperson Institution as a human rights protection mechanism will, to a considerable extent, be limited. Such cooperation is especially important in Kosovo, which, unlike other places, is not equipped with any other legal instrument strong enough to ensure the compatibility of its authorities’ actions with human rights standards.
There are still too many situations where the Ombudsperson’s requests or recommendations are either ignored or receive unsatisfactory responses. In such cases, the Ombudsperson does not dispose of any legal mechanism to react to this disregard on the side of UNMIK or the PISG. Whether or not his recommendations to the SRSG are followed or taken into consideration is very much up to the discretion of the respective SRSG. Once a report has been delivered, there is no forum for any further legal debate – if the SRSG decides, for certain reasons, not to follow the Ombudsperson’s recommendations, both sides retain their opposing positions and no solution is reached.
In such cases, there is no higher body of judicial character to which this difference of opinion could be submitted. Contrary to Bosnia and Herzegovina, no Human Rights Chamber or similar body with the competence to issue legally binding decisions on human rights issues has yet been created in Kosovo. At the same time, while Serbia and Montenegro have now ratified the ECHR, the Convention protection mechanism still does not apply in Kosovo. As UNMIK is not part of the European Convention on Human Rights and other international convention systems, the inhabitants of Kosovo are thus deprived of those international human rights protection mechanisms which have been recently accorded to inhabitants of Serbia proper and Montenegro.
In order to improve the human rights protection situation in Kosovo, which, as already mentioned in the Ombudsperson’s Third Annual Report, thus still constitutes a sort of “human rights black hole” in Europe, the Council of Europe, encouraged by the Ombudsperson, has initiated discussions with UNMIK on how to place Kosovo under the umbrella of international human rights protection mechanisms. These discussions appear to have been successful in some aspects, at least with regard to the Council of Europe’s Framework Convention for the Protection of National Minorities and the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment. There are expectations that soon, UNMIK and the Council of Europe will sign a technical arrangement in which UNMIK will undertake to exercise its responsibilities in compliance with the principles contained in these legal instruments without, however, becoming party to these conventions. Whenever appropriate, these responsibilities will also cover actions by the PISG. This will be a considerable step on the way to improving human rights protection in Kosovo.
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