XV Edition GIZ Law Journal

KOSOVO

KOSOVO

On October 24 th 2017 the long awaited integration of the justice system in Serb-dominated Northern Kosovo was finally realized. Through the appointment of 40 Serbian speaking judges and 13 Serbian speaking prosecutors, the Basic Court in Mitrovica could finally begin its work and the parallel structures (Kosovo and Serbia) that existed so far were abolished. After this formal integration was completed, the question is now: What’s next? One important issue that remains unsolved is the implementation of Article 5 [Languages], paragraph 1 of the Constitution of the Republic of Kosovo which provides that “The official languages in the Republic of Kosovo are Albanian and Serbian.” Immediately after the structures have been established and the courts and prosecutorial offices started to work, this major challenge to provide citizens, judges and prosecutors with translation became obvious. The right to understand and speak your language is one of the important principles enshrined in the right to fair trial provisions, Article 6 (Right to fair trial) under the European Convention on Human Rights and Fundamental Freedoms and as well as Article 30 [Rights of the Accused] and Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo. As such, there is a fundamental human right for every individual “to have the free assistance of an interpreter if he/she cannot understand or speak the language used in court”. 121 This right is required by the interests of justice. The implementation of this challenging requirement is one that the Assembly of the Republic of Kosovo has adopted and accepted and as such the remedy for the issue of the right to use a language that you understand and speak is within the competence of the Assembly of the Republic of Kosovo and the executive power through the allocation of extra resources to the Basic Court in Mitrovica to enable the citizens to use their language that they understand and speak and to fully comply with the interest of justice.

The challenges faced by the Basic Court in Mitrovica are the lack of technical staff for interpretation from Albanian into Serbian and vice versa. Considering this lack, Judges are incapacitated to review the case files because almost every case includes parties in the procedure from different ethnicity thus the case files contain evidences both in Albanian and Serbian. Prior to the court hearings, only two interpreters being employed are not able to cover the translation of all documents, or even be able to serve for 51 judges 122 in parallel for case file translation or simultaneous translation. Currently, the number of backlog cases of the Mitrovica region is approximately 80’000 with more than 90% of them not being initiated yet. Having such low capacities and support for translation from responsible state institutions, this number might even rise. During the transition period the GIZ Legal and Administrative Legal Reform Project (LARP) is supporting the Basic Court in Mitrovica with four short term interpreters as well as the Basic Prosecution of Mitrovica with two short term interpreters in order not to endanger the process of integration. But of course, this can only be a temporary measure until the Judicial and Prosecutorial Councils are enabled with financial resources to announce regular positions. But ultimately, as stated above, this is a competence of the Assembly and the Government of the Republic of Kosovo to allocate resources. One can only hope that the so long awaited integration – a major breakthrough after a long period of stagnation – will not be endangered through a lack of translation and that the desperately needed access to justice will finally be guaranteed for the citizens in Northern Kosovo.

The second part of the focuswas to establish a personal andwork relationship between the Serbian speaking judges and their Kosovar counterparts to bring them closer and not be considered alienated from the Kosovo Justice System. By supporting forums and roundtables, we enabled a line of communication, allowing them to work closely together by coming to understand that they face the same challenges and need to cooperate to overcome those challenges. The third part of the focus of support was the internal functioning of the court concerning language because the Basic Court of Mitrovica was not a court for just the Serbian-speaking population but also equally for the other community members of Kosovo. In this respect, to target the measures as effectively as possible our project conducted a functional review which served well as the factual basis for any implementation. Thus, part of the measures was technical in the sense of equipping the court with translation software which has facilitated the translation of decisions and records in the court, and the development of a legal dictionary in four languages. We also supported the Court with human resources, i.e. with four translators which significantly helped the work performance of the Court but at the same time, we lobbied with the Kosovo Judicial Council to open up four positions for translators which they have done. Additionally, we also supported them with professional co-workers to reduce the backlog of cases and at a later stage, one of these professional co-workers became a judge. And to this extent, it was managed to successfully conduct a first oral hearing in the Albanian language in front of a judge with exclusive Serbian language skills but also managed to reduce the backlog of cases. With the measures applied, it was achieved to show the Kosovar Government that challenges can be overcome, and it is up to them to pursue this path. However, due to the current situation with the crisis and war looming, it remains a fragile situation. Notwithstanding this, we hope that we have been able through the exchange, training and other support managed to ensure that - through the exchange, training, and other support - there is no alienation between the two communities and that the Serbian-speaking judges feel a sense of belonging to the Kosovo Justice System. When the initial article was written, no one knew how the integration would function, but time has told us almost four years later, that through hard, diligent work a lot can be achieved. Who would have thought that judges from both parties work together peacefully as colleagues? It was unthinkable then. Now the future has begone. What it has in store for us, I suppose only time will tell us. We have proven that cooperation can work successfully. Muhamet Brahini

121 European Court of Human Rights, Case of BROZICEK v. ITALY (Application no. 10964/84), Judgment of 19 December 1989. 122 Total number of Judges employed in the Basic Court of Mitrovica, - main courts in North and South as well including branches.

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