The chairman of the Democratic Party of Kosovo (PDK), Bedri Hamza, announced on Monday that the party’s parliamentary group has submitted to the Assembly of Kosovo a draft law on amendments and supplements to the law on the Kosovo Specialist Chambers in The Hague. The Alliance has declared that it supports the initiative, while the Vetëvendosje Movement and the Democratic League of Kosovo have not yet taken an official position.
Hamza, during a press conference at the Assembly building, said that the initiative comes after the protests held in recent days against the verdict against former leaders of the Kosovo Liberation Army (KLA).
In the document containing the proposed amendments, seen by Radio Free Europe, it is requested, among other things, that the maximum sentences that can be imposed be 15 years in prison and that convicted persons be eligible for a presidential pardon.
Proposed amendments
According to the document on the proposed amendments to the Specialist Chambers law, the need for intervention in the law stems from the September 16 decision, in which the KLA was “qualified as a ‘joint criminal enterprise.’”
“Such a determination produces serious constitutional, historical and political consequences for Kosovo’s statehood and sovereignty,” the document states.
According to the document, the Specialist Chambers was established with the understanding that a judicial body would address specific allegations of individual criminal responsibility. However, it argues that the Trial Panel’s essential findings in the September 16 decision are in contradiction with the statement made by the presiding judge that the case does not concern “the legitimacy of the KLA and its goal of an independent Kosovo.”
First, it is requested that Article 1 narrow the legal mandate of the Specialist Chambers only to “the specific criminal offenses identified in the Report of the Parliamentary Assembly of the Council of Europe” of January 7, 2011. The proposed amendment is said to aim at the “institutional degradation” of the court into an “extraordinary unconstitutional court” and seeks to create a legal mechanism for the “mandatory transfer of proceedings outside the jurisdiction of the Specialist Chambers, case files, evidence and detained persons to Kosovo’s regular judicial system.”
It is also requested that the article concerning the maximum sentences that may be imposed by the Specialist Chambers be amended, limiting them to 15 years in prison.
“This limitation shall apply in accordance with the principle of the more favorable law [lex mitior], according to which the criminal law more favorable to the convicted person shall apply,” the document seen by Radio Free Europe states.
According to the amendments, sentences would be served in correctional institutions in Kosovo.
The document also requests that persons convicted by the Specialist Chambers by a final judgment be eligible for a pardon by the President of Kosovo.
The Law on Pardons does not explicitly mention war crimes, but excludes from pardons persons convicted of offenses against international law. According to the Criminal Code, this category also includes war crimes, crimes against humanity and genocide.
The document requests that Article 2 amend Article 6 of the current law by limiting the cases handled by the court to “exclusively and directly the alleged unlawful extraction, removal and trafficking of human organs, tissues or cells expressly alleged in the Report of the Parliamentary Assembly of the Council of Europe,” or to unlawful killings, torture, cruel and inhuman treatment committed “at specifically named detention locations expressly identified in that report, provided that such acts were committed in direct furtherance of organ-removal operations.”
The document requests the removal of the provision granting the Court the right to prosecute general war crimes, crimes against humanity or political violence that, as stated, have no direct connection to organ trafficking.
One of the changes proposed to the law also concerns the period covered by the Specialist Chambers’ investigations. It requests that this period be from July 1, 1999, to December 31, 2000, whereas under the current law, the period for investigating alleged crimes committed by former KLA members is from January 1998 to December 2000.
Changes are also requested regarding territorial jurisdiction, limiting it to offenses that may have been committed within the territory of Kosovo. The Specialist Prosecutor’s Office has also investigated crimes alleged to have been committed in northern Albania.
The amendments also provide for accelerated procedures for reviewing jurisdiction and request that parties be allowed to appeal to the Supreme Court of Kosovo in Prishtina.
It is also requested that discontinued trials and confirmed indictments be transferred to the Special Department of the Basic Court, the Court of Appeals and the Supreme Court in Prishtina, while investigations and preliminary case files would be transferred to the Kosovo Special Prosecution Office in Prishtina.
The proposed amendments also request that local justice institutions handle the administrative procedures for transferring cases and materials following the termination of proceedings due to lack of jurisdiction.
The amendments state that they aim to regulate the physical transfer of persons deprived of their liberty to Kosovo. According to the document, a detained person must appear before a judge in Kosovo within 48 hours, after which the judge would assess the security measure in accordance with domestic law.
It is also requested that Trial Panels and panels conduct a review of jurisdiction for every case within 30 days of the law entering into force.
“When indictments contain mixed allegations, the proceedings shall be severed and only the part falling outside the jurisdiction shall be transferred, while any non-final decision addressing allegations outside the revised jurisdiction shall be annulled to that extent,” the document states, among other provisions.
What did Hamza say during the press conference?
Hamza, accompanied by PDK deputies, explained during the press conference that the initiative does not seek to close the Specialist Chambers or prevent the investigation of cases for which it was established, including allegations of organ trafficking, but rather to amend the law in order to more clearly define the limits of its mandate and powers.
“The draft law establishes that when a case does not fall within this jurisdiction, it is transferred to Kosovo, together with its file, evidence and materials. In other words, justice continues, but it continues where it should continue,” he said.
According to him, an indictment should have a concrete and direct connection to the allegations for which the Specialist Chambers was established and should not fall under its jurisdiction merely because of a general connection to the war or the KLA.
Regarding the cases currently being tried, Hamza said the draft law provides for proceedings to continue on appeal under the existing structure of the Specialist Chambers. If the Appeals Court orders a retrial, according to him, it would take place under the new jurisdiction and, when the conditions are met, the case would be transferred to Kosovo.
Acting President Albulena Haxhiu has called for a joint approach and coordination among institutions following the guilty verdict against the four former KLA leaders.
“At these difficult moments, also for citizens, we do not need divisions, incitement of hatred, or accusations about who is supposedly a spy and who is a traitor. What we need is to set those things aside and coordinate our actions on what needs to be done next,” she told Kosovo’s public broadcaster.
The Specialist Chambers investigates alleged crimes by members of the Kosovo Liberation Army committed against ethnic minorities and political opponents, which are mentioned in the 2011 Council of Europe report authored by Swiss senator Dick Marty.
This judicial institution has jurisdiction over alleged crimes against humanity, war crimes and other criminal offenses related to the allegations in Dick Marty’s report, which are alleged to have been committed between January 1998 and December 2000.
Following PDK’s announcement, Ehat Miftaraj, director of the Kosovo Law Institute (KLI), told Radio Free Europe that the initiative could also affect cases currently being heard in The Hague if the amendments affect criminal provisions.
According to him, if the new law were to provide for lower sentences or other provisions more favorable to the accused, it could be requested that these provisions also be applied to ongoing cases, in accordance with the principle of the more favorable law for the defendant.
“The application of the more favorable law is a fundamental standard of criminal law and human rights, and this could be initiated for a legality assessment by the Ombudsperson’s Office in The Hague,” he said.
Miftaraj said such an initiative could potentially be referred for review before the Specialist Chamber of the Constitutional Court in The Hague, but not before the Constitutional Court in Kosovo.
“On November 26, 2020, this Chamber, through its judgment, established that it had exclusive jurisdiction to assess amendments because they concerned the Specialist Chambers and the Specialist Prosecutor’s Office,” he added.
During the press conference, Hamza said the draft law also provides for the possibility for professional and independent international organizations to monitor the work of the Specialist Chambers, including respect for the rights of the accused, fair-trial standards, detention conditions and the duration of proceedings. These organizations would report to the Assembly and the public.
He said PDK had discussed the initiative with the leaders of the Vetëvendosje Movement, the Democratic League of Kosovo and the Alliance, and called on these entities to support the draft law.
Meanwhile, the Alliance has declared that it supports “every legal and democratic initiative” aimed at establishing justice in the judicial process against the former KLA leaders in The Hague.
With its 22 deputies, PDK needs another 18 signatures from deputies of other parliamentary groups to secure the 40 signatures required to call an extraordinary session. The Alliance has seven deputies.
PDK’s initiative comes on the sixth day of protests in Prishtina against the first-instance verdict of the Kosovo Specialist Chambers against former leaders of the Kosovo Liberation Army (KLA).
In a post on Monday, Democratic League of Kosovo (LDK) deputy Avdullah Hoti called for the Assembly to convene urgently and adopt a new resolution on Kosovo’s state engagement during the appeal process.
“The Assembly of Kosovo and the Government must have an institutional position on this verdict, which is a first-instance decision and, consequently, is not final,” Hoti wrote.
He also called on the Assembly to request that the Government undertake “full diplomatic mobilization” with international allies, with the aim that the second-instance review process, according to him, be comprehensive and respect the standards of justice.
Protests have been held every night since the verdict against Hashim Thaçi, Kadri Veseli, Jakup Krasniqi and Rexhep Selimi was announced on September 16. PDK deputies and other political representatives have also regularly been seen at the protests.
The organizers have presented four demands addressed to the Government and the Presidency of Kosovo: the repeal or amendment of the law on the Specialist Chambers; the dismissal of Justice Minister Donika Gërvalla; unlimited support and sufficient funds for the defense of the former KLA leaders; and the engagement of international experts for their defense.
Gërvalla has been criticized by protest organizers for failing to react to the Specialist Chambers’ verdict.
On September 16, the Specialist Chambers sentenced Thaçi and Krasniqi to 25 years in prison each, Veseli to 18 years and Selimi to 13 years. They were found guilty of several war crimes, while they were acquitted of the charges of crimes against humanity.
All four former KLA leaders have denied the allegations and announced that they will appeal the verdict./Radio Free Europe
