New ICJ briefing paper analyses the judicial transition in Kosovo

The ICJ published today a briefing paper providing a first assessment of the process of transition of the judicial system in Northern Kosovo from the Serbian to the Kosovo legal system.

The briefing paper, which follows a visit of a delegation of the ICJ in Kosovo from 1 to 4 November 2015, preliminarily identifies key issues for access to justice and the protection of human rights through the justice system, which need to be addressed and monitored during the transition process.

The paper documents an ongoing process of transition of the judicial system in Kosovo.

It concludes that a key determinant of the success of this transition must be the effective protection of access to justice for all in Kosovo that must be provided by an independent, impartial and effective judicial system, assisted by independent, impartial and effective legal profession and prosecution service.

In its conclusion, the ICJ found that the Kosovo legal system does not yet meet the requirements of the Kosovo Constitution to respect international human rights law and standards and, in particular, the right of minorities, including under the Council of Europe’s Framework Convention. Its shortcomings include:

  • the reported lack of security for Kosovo Serb and Kosovo Albanians to access courts in areas dominated by the other ethnicity, with a clear obstructive effect on access to justice;
  • the dramatic incapacity of the Kosovo legal and education system to ensure generational continuity for the Serb community in the legal profession with future stark consequences for the ethnic composition and competence of the judiciary, prosecution service and legal profession;
  • the lack of equality in practice between Albanian and Serbian languages in judicial proceedings and unreliable quality of the drafting and translation of its legislation; and
  • the existence of a deep divide between the laws as written, which often recall or refer to international standards, and the implementation of the laws on the ground.

Finally, the ICJ stressed that the respect, protection and fulfillment of all conditions of access to justice of the non-Albanian minorities is therefore a key benchmark against which the success of this transition or “integration” must be assessed.

The ICJ mission team was composed of Ketil Lund (ICJ Commissioner and former Supreme Court Justice of Norway), Róisín Pillay (Director of the ICJ Europe Programme), and Massimo Frigo (Legal Adviser of the ICJ Europe Programme).

Kosovo-Integration of the justice system-Publications-Reports-Fact Finding mission reports-2016-ENG (full paper, in PDF)

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