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OMBUDSPERSON INSTITUTION IN KOSOVO

QUARTERLY INFORMATION SHEET J A N U A RY - M A R C H 2 0 0 5

OMBUDSPERSON

Ombudsperson speaks at the Parliamentary Assembly of the Council of Europe in Strasbourg

Strasbourg, France - The Kosovo Ombudsperson, Mr. Marek Antoni Nowicki, spoke as a special guest during the Council of Europe’s Parliamentary Assembly debate on the protection of human rights in Kosovo on the 25th of January 2005.

ing the debate on the report “Protection of human rights in Kosovo” submitted by the Parliamentary Assembly’s Committee on Legal Affairs and Human Rights. Mr. President, members of the Parliamentary Assembly, Presidents and Secretaries-General, I am honoured and pleased to have been given this opportunity to address such distinguished representatives from European countries. Having worked as the Ombudsperson in Kosovo since July 2000, I am grateful to be able to speak on a matter that, on a professional and on a personal level, is of the utmost importance to me. Ladies and Gentlemen, what Kosovo needs first, in order to protect the rights and freedoms of its people, is a Human Rights Court and to consolidate the Ombudsperson Institution. The international community in Kosovo must take this Institution as seriously as it deserves. Far too often, I receive inadequate responses from international actors in Kosovo, which frequently leaves me disappointed after my five years as Ombudsperson.

Marek Antoni Nowicki (Photo: Council of Europe)

During his visit, the Ombudsperson also exchanged views with, inter alia, the President of the Parliamentary Assembly, Mr. René van der Linden, the SecretaryGeneral of the Parliamentary Assembly, Mr. Bruno Haller, the Deputy SecretaryGeneral, Ms. Maud de Boer Buquicchio and other senior representatives of the organisation. He also met with a range of foreign ambassadors for a special briefing. The following is the statement delivered by Mr. Marek Antoni Nowicki, Ombudsperson in Kosovo, on the 25th of January 2005 to the Parliamentary Assembly of the Council of Europe dur-

I would like to extend my most heartfelt thanks to the Council of Europe for its constant and never wavering support for human rights protection in Kosovo, in particular when it concerns the work of my Institution. We have greatly benefited, as a result. This debate is a significant sign that the Council of Europe intends to enhance its involvement in human rights protection in Kosovo. In this context, I would like to congratulate Mr. Tony Lloyd and the Committee on Legal Affairs and Human Rights for the report which is at the center of today’s meeting. I was especially pleased to see that this report covers many essential points that I myself have raised in the past. I would like to focus our attention on the

background on which this report was conceived. Although the human rights situation in Kosovo has improved in certain sectors, the general level of human rights protection there is still far below minimum international standards. The situation is especially, but not exclusively, difficult for the non-Albanian communities, particularly for the Serbs and the Roma. As all of us know, 2005 is the year of Standards.

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CONTENTS

Message from the Ombudsperson .............2 Activities of the Gender Equality Unit (GEU)...................................3 The Children’s Rights Team (CRT) ...........3 The Non-Discrimination Team (NDT) ......3 In Kosovo’s camps, a story waits for an ending..........................4 OIK’s work with the Roma of North Kosovo ..............................4 Reports: .......................................................5 Selection of official meetings:................ 6-7 Ombudsperson visits communities affected by power outages ..........................8 The Ombudsperson reviews the situation of the Kosovo judiciary .........8 Ombudsperson Institution opens new field office in Gračanica/Graçanicë ...........9 Ombudsperson professional exchange program.......................................9 OIK internship winner ................................9 Interim measures:......................................10 Selection of positively resolved cases......11 Selected cases/responses and interventions (January - March 2005) ......................12-18 Conferences and workshops:...................19 How to contact the OIK? ..........................20


OMBUDSPERSON

Message from the Ombudsperson

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hat is in store for Kosovo in the coming year and years as the international community, local leaders and people here prepare for the long anticipated political slalom of status talks that aim to shape the future of the province? On one side, Kosovo Albanians yearn for independent statehood and many seem to be under the impression that such a wish can be granted rather soon. To put the genie back into the bottle-- independence does not immediately, or necessarily, usher in the much heralded dream of prosperity and freedoms, especially for the economy, which is often at the heart of such café and living room conversations. On the other hand, it looks like Kosovo Serbs reject outright the idea of independence. They see independence as an ethnic cleansing of the province, as a part of a greater Albanian project. If such a thing were to happen, then there would no longer be a place for them in a land that they have associated, historically and mythically, as the cradle of Serbian cultural and spiritual identity. If Kosovo is accorded some manner of independence, for the first time really, Kosovo Serbs, who have long thought of themselves as a part of a larger entity- that of Serbia- will become a minority community in a newly drafted political landscape with which they would find it difficult to identify. For all the consequences that that implies, are they mentally prepared for such a likely reality- a reality dominated by a tight knit network of big Kosovo Albanian families which run the region in a somewhat exclusive clan-like fashion? Let’s take an honest, hard look at Kosovo today: Poverty is widespread and a considerable number of people endure difficult, even harsh, daily living conditions. There is a significant gap between those who are receiving meager social welfare assistance and those who are not. Not to mention the far- reaching unemployment and a fast growing youth with few meaningful future prospects to work towards. To explain the existing tension and discord, I hear a great deal of discussion about how such dire living conditions incubate an increasing sense of frustration and anger among the population. But one must remember that this frustration is not unique to one ethnic sector in Kosovo. Everyone is suffering, albeit in a differ-

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ent manner, under the current circumstances. But, de facto, the people who tend to suffer first are the most vulnerable populations - usually, but not only, the minority communities. In the context of Kosovo, even Serbs do not occupy the lowest rung on the ladder. The Kosovo Serbian community can be seen as experiencing relatively better conditions than other non-Albanian communities because they have received notable support in certain ways from the Serbian state. Could this population have survived the past five years without such assistance? One should remember however that assistance, financial or otherwise, also reenforces a sense of loyalty and dependence. Independence would mean being cut off from such support and living with the ensuing consequences. Would the Kosovo Budget be able to assume this additional cost? Apart from these daily social, political and material factors, there are other elements which objectively make people irritated, and not cooperative. During a recent conversation, the President of the Kosovo Assembly, Mr. Nexhat Daci asked how can a frustrated majority take care of its minorities? Such statements are key to understanding what’s going on in Kosovo. The painful story of the missing comes to mind. A few thousand Kosovo Albanians are still unaccounted for and five years later, still too few have been found criminally guilty for atrocities committed in Kosovo during the conflict. The story of the untold number of Kosovo Albanian bodies burned at the smelter in Mackatica illustrates how many unanswered questions remain. In turn, life has not been so good to the Kosovo Serbs in the years since 1999. They too have countless missing relatives, have been pushed out of their homes, thrown out of work, expelled from their homes again in March of 2004, and in general, victimised while local and international authorities have done too little. Given the climate, it doesn’t help that overall, Albanians see, rightly or not, in every Serb the representation or presence of Serbia in Kosovo, whose loyalties lie solely with Belgrade. It also doesn’t help, in this respect, that in the recent Serbian elections, a great majority of Kosovo Serbs voted for a radical candidate, while not participating in the Kosovo elections. Such messages undoubtedly influence the ordinary Albanian when he or she thinks about reaching out to Serbs and future co-habitation. Do we get to the point that people in Kosovo can realistically live together? This is a conflict that stretches far back through history. One should remember that by independence, Kosovo Albanians would have achieved at last what they have been working towards for generations and which is, at the same time, against Serbs and Serb interests in Kosovo. If independence is granted, then this country would have been created through the political process of recent years- obviously against the will of the Kosovo Serbs and possibly, Serbia. The prevailing Kosovo Serb mindset is convinced that the province was taken by force or stolen, without asking them- even though this whole time their

Q U A R T E R LY I N F O R M A T I O N S H E E T

answer has been quite clear. On the other side, there is a general lack of reflection about the devastating consequences of past actions of Milosevic. Not to mention that it will take quite some time and progress in order to have nonAlbanians, particularly Serbs, persuaded that they can consider Kosovo also as their country, if it happens at all. If Kosovo is to move towards a democratic statehood, based on European values, then Serbia and Kosovo aim to be members of the same family following the same standards. If it survives until such time, then the Serbian community must have every possibility to preserve its identity and heritage while being able to maintain free open relations with Serbian compatriots in Serbia proper. Kosovo would not be setting a precedent for such action. How then to open enclaves and to make Kosovo the land of opportunity for Kosovo Serbs? They rightly ask for freedom of movement and access to resources and employment in order to stimulate the community. To better survive as a community, the return must happen. It is not only a question of numbers; it is very much a question of how to encourage primarily young people to return because they are the only bedrocks for a society. It is not enough to have people coming back to merely exist and die on their land. It is a question of having enough educated, professional people to strengthen the community. For this reason, urban return must happen. Yet urban return seems somewhat a dream on the backdrop of a rather discouraging reality in which Serbs still opt to sell their property in Prishtinë/Priština and other towns. But the onus is also on the Kosovo Serb community. One of the core issues is language. Aside from being able to use the Serbian language, it is obvious that if Serbs intend, and are able, to live in a more open way than in isolated enclaves, they must learn Albanian in light of such a significant Albanian majority. The road towards status resolution, even from a human rights standpoint, is more complex than the few illustrative examples I have raised. Has anyone given serious thought to a new Kosovo flag that has some symbolic meaning with which non-Albanians would be able to identify? This is just one of a legion of questions requiring careful reflection and time. This letter contains excerpts from the February 18th, 2005 installment of a regular bi-weekly column entitled ”Off the Record” written by the Ombudsperson of Kosovo for the Kosovo Albanian daily newspaper, “Koha Ditore”, the Belgrade-based daily “Danas”, the Bosnian Serb News Agency SRNA, and the French language web publication “Le Courrier des Balkans.” Readers can also find the column printed every other Friday of the month in the above-mentioned media outlets and occasionally in the online English language Prague-based journal, Transitions Online.

January - March 2005


From the 1st of February 2005 the GEU has become operational. Ms. Luljeta Domaniku, the GEU lawyer, was hired as a result of a public, Kosovo-wide competition. During the reporting period, the GEU has assumed all investigations related Luljeta Domaniku to gender-based discrimination and woman’s rights carried out by the NDT until the month of February 2005. The GEU is also investigating the alleged unlawful dismissal from work of a female teacher who refused to follow the school’s directive aimed at banning the wearing of headscarves in schools. Thanks to the support of the United Nations Development Fund for Women (UNIFEM), the GEU has printed introductory leaflets in Albanian, Serbian, and Turkish languages to inform the public what gender-based discrimination is in order to enable all persons who feel that they may have been victims of such discrimination to contact the GEU within the OIK.

The Children’s Rights Team (CRT) During the reporting period, the OIK renewed its cooperation with the United Nations Children’s Fund (UNICEF) in order to consolidate the results obtained by the CRT during its first year of activity and to increase the visibility of the CRT among Kosovo society in general. In this quarter, the CRT carried out investigations into cases related to child custody, health services and care, reunification of family members, education, and the ill-treatment of children. In particular, the CRT is currently investigating two cases of alleged ill-treatment of children in schools, based on information taken from an article published in the newspaper “Lajm Ekskluzive” about the ill-treatment of a student by his teacher. The issue was subsequently raised with the Ministry of Education, Science and Technology, which later informed the OIK that the case was under investigation by the Inspection Office within the Ministry. The CRT is also dealing with a case concerning the living conditions of Roma children staying in camps in Northern Kosovo, who are exposed to serious dangers to their health and their physical and psychological growth.

January - March 2005

The Non-Discrimination Team (NDT) During the reporting period, the NDT within the OIK has continued working on issues dealt with in the previous quarter, such as cases related to: the use of official languages within the local institutions of selfgovernment in Kosovo; agebased discrimination in vacancy announcements; the lack of legal remedies available to UNMIK employees when UNMIK allegedly does not respect contractual terms. The NDT is also investigating the living conditions of people staying at Roma camps in Northern Kosovo and whether they are compatible with international human rights standards. The NDT is also monitoring an investigation into the

alleged discriminatory practices involving the granting of assistance to victims of the earthquake on 24th of April 2002 in Gjilan/Gnjilane and is also conducting an investigation into alleged discriminatory practices in proceedings involving the allocation of social apartments of “GJ” category in the Municipality of Obiliq/Obilić. The NDT is also monitoring the process of returning Roma living in camps in Northern Kosovo to their ancestral homes located on the southern bank of the Ibar River in Mitrovicë/ Mitrovica-- known as the Roma Mahalla-- where they had been living since the mid 19th century until the 1999 conflict.

OMBUDSPERSON

Activities of the Gender Equality Unit (GEU)

Ombudsperson speaks at the Parliamentary Assembly of the Council of Europe in Strasbourg Cont’d from page 1

The achievement of the Standards must not be a hollow exercise, but the reality. The most important recommendation contain ed in the report is clearly the one calling for the creation of a Human Rights Court in Kosovo. But what will be the future relationship between such a Human Rights Court and also the recommended Special Chamber of the Supreme Court on Constitutional Framework Matters? While the Human Rights Court would be the only judicial organ handling complaints against UNMIK and KFOR, both bodies would deal inter alia with individual human rights cases against the local administration. The issue of their correlation still needs to be clarified. The report also addresses the question of strengthening the role of the Ombudsperson. Here, I add an additional proposal: UNMIK should also be obliged to ensure that the local administration cooperate with the Ombudsperson. Both UNMIK and the provisional governing institutions of Kosovo should be required to respond to the Ombudsperson’s

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concerns within a specific and reasonable time frame. As to the future of the Ombudsperson Institution in Kosovo, not only should an international Ombudsperson continue to be at the helm of the Institution, but it should also have a sufficient number of international staff members to work with and train the local staff. A sine qua non in this respect is, of course, adequate funding. I stress this point because recently, I have been receiving certain worrying messages with regard to this subject. Again, Ladies and Gentlemen, please do not forget the reason why I am standing here before you today: It is essential that Kosovo have a Human Rights Court and that the Ombudsperson Institution be strengthened. The proposals of the Committee on Legal Affairs an d Human Rights debated today, if accepted, must be implemented without delay. All people in Kosovo, regardless of their ethnicity, background and belief, must have guaranteed basic rights and freedoms that most other parts of Europe have long taken for granted.

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OMBUDSPERSON

Marek Antoni Nowicki:

In Kosovo’s camps, a story waits for an ending

PRISTINA, Kosovo. As my car entered the largely ignored. Even if they were not living in stroyed the Mahalla five years ago are ready to camp in Zitkovac, a town in northern Kosovo, the margins of society, as other Roma in the re- do the same again. a taxi followed, with a coffin tied precariously gion do, they were deeply marginalised by the The violence of last March indicates that this across the roof. The camp was supposed to violence in 1999. story is far more complex than a legal matter serve as interim housing for some of Kosovo’s People in Kosovo know what Mahalla means: a concerning property rights. Who could guarRoma, or Gypsies, displaced from their settle- traditional old settlement, linked to the notion antee the Roma’s security if they choose to rement in the nearby city of Mitrovica. But since of an ethnic community. Like any other inter- turn to their Mahalla? 1999, it has become the birth place and final nally displaced people, these Roma have the During many discussions about security in resting place for many. right to be back in their homes. Kosovo, I have heard too frequently, even from For more than five years, wind, rain, sun and Today, the vulnerability of this whole commu- Kosovo’s politicians, that security is the responsnow have beaten down on the flimsy make- nity is evident. The meager humanitarian aid sibility of the NATO-led international military shift dwellings - made of nothing more than they had been receiving dried up more than force, known as KFOR, and the police forces tin and clap-board, insulated by of the United Nations Mission plastic sheets - that shelter 1,000 in Kosovo, known as UNMIK. Of people in four Roma sites in course these forces play a connorthern Kosovo. siderable security role, but only The only water flowing in the neighbors and the surrounding camps spills out from broken community can be the only real valves. Showers and temporary custodians of the Roma’s safety toilets are shared by everyone in the Mahalla. The Ombudsperson has been monitoring closely the efforts - when they function. Putrid waToo often there is resistance of various institutions and organisations aiming to return ter muddies the dirt walkways when I raise these problems. between shacks and seeps inside The pervasive attitude is: Why the Roma who had been forced from their homes in the the fragile households of nearly should Albanians take care of Mahalla of southern Mitrovicë/Mitrovica during violent every family. Roma? This attitude is present reprisals in 1999. Inhabitants of the camps openly in the general public as well as The Ombudsperson published the article appearing on this complain about the unsafe and in the news media, as evidenced page in the International Herald Tribune (France) on Januunsanitary conditions in which by the lack of serious coverage their children play. The Roma - the matter does not even regary 12, 2005 to highlight the dismal and toxic conditions in camp at Zitkovac lies in the shadister in public dialogue. which the Roma live. ow of poisonous metal waste If these Roma can no longer live left over from the Trepca mines, in Fabricka Mahalla, then this is which were among the largest in nothing else but the de facto Europe, supplying lead, zinc and completion of the ethnic cleansgold. Forty-one Roma children ing that started in 1999. If there have been diagnosed with blood were proposals to resettle the disorders as a result. Roma community elsewhere, Many Roma settlements in Euthey would be appreciated as a rope are transient, but the camps purely humanitarian action, but in Kosovo are very different from this does not change the nature what their inhabitants were acof what happened to the Roma. customed to before 1999. When Whatever conditions the people I visit the camps, I am often preand government of Kosovo must sented with a folded worn scarf meet in the pending political to inspect. Wrapped inside are wrestling match over Kosovo’s documents verifying ownership future status, one thing must for hundreds of their former be clear: All those who were houses and properties in what is violently thrown out of Kosovo known by locals as Roma Mahalin 1999 or after should be able la, in the south of Mitrovica. to have a safe future in the place The Roma in the camps in North they consider home, no matter Kosovo are what are left of the what their ethnicity or birth. more than 7,000-strong Roma Kosovo’s future depends very neighborhood of Fabricka Mamuch on local and international Roma Mahalla of Mitrovicë/Mitrovica halla. The Mahalla, one of the oldgoverning structures, but ulest settled Roma communities in timately it will depend on the the Balkans, grew and prospered people of Kosovo and their atfor more than 150 years. Most of the inhabit- two years ago. Few Roma houses have been titude toward their neighbors - be they Serb, ants lived in good houses, many of them had rebuilt. Roma or others. In this sense, the story of the jobs and were a part of the community in Mi- My deep suspicion is that these people are be- Fabricka Mahalla is a major test. trovica. ing treated this way for no other reason than (Marek Antoni Nowicki, a former member of In 1999, the population was forced to the north that they are Roma. the European Commission on Human Rights side of the divided city of Mitrovica when near- The widespread violence against Kosovo’s and the co-founder and president of the Helly every house and business in Mahalla was non-Albanian settlements last March - during sinki Foundation for Human Rights in Warsaw, burned to the ground during violent reprisals which 4,000 non-Albanians were forced from has been the UN-appointed Ombudsperson of against Kosovo’s Serbs and Roma. The Roma of their homes and 19 Serbs and Albanians died Kosovo since 2000. Kata Mester contributed to the Mahalla now live in unspeakable poverty, - illustrated that the individuals who first de- this article.)

OIK’s work with the Roma of North Kosovo

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Q U A R T E R LY I N F O R M A T I O N S H E E T

January - March 2005


During this reporting period, the Ombudsperson Institution issued 3 reports related to length of procedure. The following are summaries of the reports: ● On the 28th of February 2005 the Ombudsperson issued the report “Regarding the length of proceedings in the case of Mark Gojani.” The Ombudsperson found that the failure of the Municipal Court in Klinë/Klina to resolve the applicant’s case since the latter had initiated civil proceedings to resolve the question of ownership of a property before this court on 10 January 2002 did not constitute a violation of the applicant’s right to a fair hearing within a reasonable time, as guaranteed under Article 6 para. 1 of the European Convention of Human Rights. The Ombudsperson noted that Article 6 para. 1 is only applicable to proceedings involving the determination of civil rights and obligations. As the Municipal Court in Klinë/Klina had already decided on the question of the ownership of the property in question in 1996, this issue was no longer in dispute. The proceedings initiated by the applicant in 2002 thus no longer involved “the determination of a civil right or obligation”. According to the case law of the Convention’s organs, Article 6 was therefore not applicable to the proceedings under consideration. The Ombudsperson concluded that there had been no violation of the applicants’ right to a fair hearing within a reasonable time as guaranteed by Article 6 of the European Convention on Human Rights. ● On the 7th of March 2005 the Ombudsperson issued the report “Regarding the length of proceedings in the case of Ramadan Mamusha.” In this case, the Ombudsperson found that the Municipal Court in Gjakovë/Djakovica’s delays in resolving the applicant’s case, in particular the court’s failure to serve its judgment issued on 26 June 2003 until 12 December 2003, did not constitute a violation of the applicant’s right to a fair hearing within a reasonable time as guaranteed under para. 1 of Article 6 of the European Convention on Human Rights. The Ombudsperson based his conclusion on the fact that, despite the five and a half

January - March 2005

months’ delay in serving the judgment on the applicant, proceedings were in general conducted expeditiously. Moreover, the entire length of court proceedings did not last longer than two and a half years over two instances. ● On the 22nd of March 2005 the Ombudsperson issued the report “Regarding the length of proceedings in the case of Emine Buza and others.” The Ombudsperson found that the failure of the Municipal Court in Prizren to resolve the applicants’ case within a reasonable time constituted a violation of their right to a fair hearing within a reasonable time as guaranteed under para. 1 of Article 6 of the European Convention on Human Rights. In the instant case involving the applicants’ request for restitution of family property that had been expropriated in 1946, the Ombudsperson noted that there had been two long delays in proceedings until September 2004, when the Municipal Court had declared itself incompetent to decide on the case following the creation of the Special Chamber of the Supreme Court of Kosovo on Kosovo Trust Agency Related Matters. While recognising that the case could have been somewhat complex, the Ombudsperson noted that after the creation of the above Special Chamber, the primary question was the relatively simple issue of whether the case still fell into the Municipal Court’s competences. Even if the first delay could, to a certain extent, be explained with the long-term effects of the 1999 Kosovo conflict, the Ombudsperson could not find any such justification for the second delay lasting from November 2002 to September 2004. Regardless of where the competence for the case lay after June 2002, the Municipal Court should have taken some relevant action in the case, at least after that date. The Ombudsperson noted that the argument that the delay was due to the lack of sufficient judges to deal with civil cases could have justified delays immediately after the 1999 conflict, but not now, five years after said conflict. Stating that it was up to UNMIK to ensure that cases were resolved in an expeditious manner, but that also the court management system of the Municipal Court could be improved, the Ombudsper-

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OMBUDSPERSON

REPORTS:

son noted that recently, UNMIK and the responsible Kosovo Judicial and Prosecutorial Council, a body responsible inter alia for appointing judges, appeared to have given priority to the problem of the length of proceedings before Kosovo courts. It would, however, remain to be seen whether and how the present initiatives taken by these two bodies would provide the courts in Kosovo with permanent long-term and provisional short-term solutions on how to deal with the ever-growing case load in a manner that would be more adapted to the requirements of Article 6 para. 1 of the Convention. The Ombudsperson also observed that the absence of a legal remedy for the violation of the right to a fair hearing within a reasonable time constituted a violation of the right to an effective remedy under Article 13 of the European Convention on Human Rights. He noted that although this lack of a legal remedy in such cases had been raised many times in several of the Ombudsperson’s reports to various SRSGs, there had so far been no visible action to change this on the side of the responsible lawmaking authorities, despite continuous assurances that the matter was under “active consideration”. While the initiatives of the Kosovo Judicial and Prosecutorial Council and the UNMIK Department of Justice to resolve the issue of lengthy court proceedings may be considered as a positive development, the Ombudsperson noted that again, the question of an adequate compensatory response to violations suffered by applicants due to such long court proceedings was being left aside. The Ombudsperson recommended that the SRSG should ensure that the Municipal Court proceed with the applicants’ case without any further delay and that it assess and possibly revise its internal organisation system. The Ombudsperson further recommended that the SRSG should ensure that the initiatives taken by the Kosovo Judicial and Prosecutorial Council and the Department of Justice be pursued in an expeditious manner so that the problem of lengthy court proceedings all over Kosovo could be resolved as soon as possible. Finally, the Ombudsperson recommended that the SRSG promulgate a Regulation providing for an effective remedy in the sense of Article 13 of the European Convention on Human Rights providing both preventive and compensatory relief with respect to complaints about excessive length in civil cases.

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OMBUDSPERSON

Selection of official meetings: On the 18th of January 2005 the Ombudsperson met with the leader of the Democratic Party of Kosovo (PDK), Mr. Hashim Thaqi, to discuss human rights related problems and the future of the Ombudsperson Institution in Kosovo (OIK). The Ombudsperson also informed him about the recommendations adopted during the session of the Parliamentary Assembly of the Council of Europe (PACE) with regard to human rights protection in Kosovo. During the meeting, Mr. Thaqi reiterated his appreciation for the earlier efforts of the Institution and expressed his continued support for its work.

On the 28th of January 2005 the Ombudsperson was visited by the KFOR Commander of the Multi National Brigade South West, Brigadier General Richard Rossmanith. The Ombudsperson updated Brigadier General Rossmanith on the human rights and living conditions of minority communities, and discussed, in particular, the security situation and the efforts of KFOR in this respect. The specific situation of the members of the Serb community still living in a KFOR military base since they were forced to flee from their homes in Prizren 10 months ago was also highlighted.

The Ombudsperson, Mr. Marek Antoni Nowicki and the President of Kosovo, Dr. Ibrahim Rugova.

On the 21st of January 2005 the Ombudsperson met with the Minister of Local Self-Government, Mr. Lutfi Haziri, to discuss the plans and the current stage of development of this newly established Ministry, in particular regarding the area of returns and freedom of movement issues which were among the priorities in the Standards for Kosovo. On the 21st of January 2005 the Ombudsperson met with the Minister of Public Services, Ms. Melihate Tërmkolli, to discuss how to increase cooperation between the two institutions and issues related to salaries for the employees of the OIK.

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Brigadier General Rossmanith, and the Ombudsperson agreed to meet regularly to continue to exchange views on current developments, specifically from a human rights perspective, and to be of mutual assistance to each other if necessary. On the 31st of January 2005 the Ombudsperson met with the President of Kosovo, Dr. Ibrahim Rugova, to inform him about the recommendations adopted during the session of the PACE with regard to human rights protection in Kosovo, in particular concerning the suggestion to establish an International Kosovo Court of Human Rights.

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The President and the Ombudsperson also raised certain issues with regard to the future of the OIK, in particular during the time of transition when the Institution would become a part of the Kosovo governmental public structures. On the 1st of February 2005 the Ombudsperson met with the leader of the ORA political party, Mr. Veton Surroi to discuss issues related to the rule of law and human rights in Kosovo. An aspect of the discussion centred on the recent recommendations of the PACE related to the strengthening of very much needed human rights protection mechanisms. Both the Ombudsperson and Mr. Surroi agreed to maintain an open avenue of communication to further facilitate their cooperation. “Political leaders as well as international actors in Kosovo should look to the Strasbourg recommendations and give them the attention they truly deserve. Contrary to certain opinion, it is an obligation of all, including political parties and their leaders, to make the necessary efforts to improve the current, very unsatisfactory situation in the field of protection of human rights in Kosovo,” the Ombudsperson said. On the 3rd of February 2005 the Ombudsperson met with the then Prime Minister of Kosovo, Mr. Ramush Haradinaj, to discuss the challenges confronting the government in the year 2005 in the areas of the rule of law, the general level of the protection of human rights, which was still far below minimum international standards and very much the question of the protection of minorities. Also under discussion were the recommendations of the PACE. The Ombudsperson also raised with the Prime Minister the issue of the OIK’s budget, staff salaries, and the efforts expected, in this respect, from the government to assure the viability of the Institution and the professional level of its staff. “I wished the Kosovo government and personally the Prime Minister much needed success in the important year ahead in the interests of all people of Kosovo. The year 2005 will be a review of the standards, some of which greatly reflect the work of the OIK. I want to support

January - March 2005


On the 3rd of February 2005 the Ombudsperson was visited by the Ambassador of the Russian Federation to Serbia and Montenegro, Mr. Alexander Alexeev, in Prishtinë/ Priština to exchange views on worrying human rights issues, particularly the situation of the Serb and Roma minorities, in the context of future political developments. On the 4th of February 2005 the Ombudsperson met with the President of the Kosovo Assembly, Mr. Nexhat Daci, to discuss enhancing cooperation between the newly elected Assembly and the OIK. The Ombudsperson presented recommendations from the PACE, which outlined long range plans for measures and institutional initiatives in order to strengthen the protection of human rights in Kosovo. One of the conditions is to create a Human Rights Committee in the Kosovo Assembly. According to the Ombudsperson, the competences of the existing “Committee on the Rights and Interests of Communities and Return” in the Kosovo Assembly should be expanded in order to give the committee the ability to review all draft laws from a human rights perspective. This would also help to considerably facilitate the relations and cooperation between the OIK and the Kosovo Assembly. On the 7th of February 2005 the Ombudsperson was visited by the Senior Advisor to the SRSG on Minority Issues, Mr. Craig Jenness, to discuss issues related to the situation of minorities. The Ombudsperson reiterated his deep concern about the still unresolved matter of electricity outages in several villages. “It is imperative that every household pays for its electricity consumption. Even so, the needs and interests of many others who cannot afford to do so for various valid reasons must also be duly considered. During these particularly cold days,

January - March 2005

I think about those families which have somehow existed without electricity for weeks now. Their situation should be treated as a serious humanitarian problem

Deputy Ombudsman of Slovenia, Mr. Tone Dolčič, and staff psychologist, Ms. Polona Selič

requiring more urgent attention. A solution must be found, notwithstanding the debate regarding contracts and bills,” the Ombudsperson said. On the 11th of February 2005 the Ombudsperson was visited by the Head of the French Office in Prishtinë/Priština, Mr. Thierry Reynard to discuss the work of the OIK in the context of recent developments. On the 24th of February 2005 the Deputy Ombudsman of Slovenia, Mr. Tone Dolčič, and staff psychologist Ms. Polona Selič traveled from Ljubljana, Slovenia to visit the Prishtinë/Priština offices of the OIK to meet the Ombudsperson and conduct a workshop with the CRT legal team. On the 1st of March 2005 the Ombudsperson was visited by the Council of Europe’s new Head of Office in Prishtinë/ Priština, Mr. Zurab Katchkatchishvili, to discuss the work of the OIK and its cooperation with the Council of Europe. On the 7th of March 2005 the Ombudsperson was visited by the Ombudsman of Luxembourg, Mr. Marc Fischbach, to exchange experiences and explore means for possible future cooperation. The Ombudsman Institution of Luxembourg is the youngest in the European Ombudsman family. “Strengthening the cooperation between Ombudsperson Institutions only enhanc-

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es our work. Such institutions exist in a network through which we share our varied experiences, but also quite frequently assist each other in handling specific cases. Even if I do not have the jurisdiction to deal with a specific case, I still have the option to bring the matter up with the Ombudsperson of the respective country,” the Ombudsperson said.

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the government in the enormous task they shoulder. I am glad to hear the Prime Minister’s commitment to the improvement of conditions for non-Albanian communities, in particular for Serbs and Roma, which are still quite dramatic,” said the Ombudsperson.

On the 7th of March 2005 the Ombudsperson traveled to Belgrade and had a working lunch with the Ambassadors to Serbia and Montenegro from: Austria, Mr. Gerhard Jandl, France, Mr. Hugues Pernet, the Netherlands, Mr. B.C.A.F van der Heijden, the Russian Federation, Mr. Alexander Alexeev, Spain, Mr. Mariano Garcia Munos, and a representative from the Embassy of the United Kingdom, hosted by the Ambassador from Poland, Mr. Tadeusz Diem. The purpose of the meeting was to exchange views about the current situation in the province and the implementation of Standards, particularly the rule of law and human rights. On the 14th of March 2005 the Ombudsperson was visited by the Member of the Kosovo Assembly and Chairman of the Committee on Judicial, Legislative and Constitutional Framework Matters, Mr. Hidajet Hyseni, to discuss different issues related to the cooperation between the Institution and the Assembly. On the 21st of March 2005 the Ombudsperson was visited by the Special Advisor to the SRSG for Returns, Mr. Slaviša Kostić, to evaluate developments related to the issue of returns - one of the priority Standards. Both agreed that there was unsatisfactory progress in this respect, further aggravated by a host of obstacles. “Needless to say, every IDP has a right to return. At the same time, realistically, it is difficult to speak about any large scale return, in particular having in mind the results of this process during the past few years. It is the obligation, however, of all involved, notably the international community and Kosovo leaders, to have sustainable returns taking place even if the environment is not prepared and the conditions on the ground are not always welcoming,” the Ombudsperson said.

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Ombudsperson visits communities affected by power outages On the 9th of February 2005 the Ombudsperson, Mr. Marek Antoni Nowicki, with his deputy, Mr. Ljubinko Todorovic, visited the communities of Priluzje/Perluzhe, Batuse/Batushe, and Lipjan/Lipljan, mainly populated by Serbs, in central Kosovo to survey the conditions and to find out how, for nearly two months, the inhabitants were surviving without electricity in the freezing temperatures. The Ombudsperson and his deputy met with representatives in each community to hear about the problems they faced as a consequence of the power outages. The lack of water was also one of the direst problems. “As a result of the power outages the general conditions of each location is on the verge of a humanitarian crisis. An urgent solution must be found that will assure that people will receive electricity. Electricity problems, to a considerable extent, are a part of a larger situation in which Serbian On the 16th of March 2005 the Ombudsperson met with the President of Fushë Kosovë/Kosovo Polje Municipality, Mr. Skënder Zogaj, at the Institution’s main offices in Prishtinë/Priština to discuss the recent developments regarding the ongoing electricity problems in the Serbian village of Batuse/Batushe. The Ombudsperson asked Mr. Zogaj to describe the current situation and to explain the steps taken by the municipal authorities to find a reasonable solution to the crisis, which had humanitarian, social and possibly even politi-

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Serb inhabitants of Batuse/Batushe explain the situation in their village

and certain other communities have endured since 1999. I must emphasise in this context that a high number of Serbian employees of KEK lost their jobs at that time and many in Kosovo are still struggling with the consequences. All involved need to

cal consequences. The Ombudsperson voiced his concern during the meeting that the Kosovo Electric Company’s (KEK) action in the Municipality of Fushë Kosovë/Kosovo Polje, which was accompanied by thea use of considerable force by UNMIK Police and KPS officers exacerbated already existing tensions there and could also have had undesired ramifications. The Ombudsperson appreciated the personal efforts of Mr. Zogaj, to help the inhabitants of Batuse/ Batushe village.

show enough openness and flexibility in finding a proper solution and a consistent way of action in order to avoid too easy of an answer which could lead to a crisis of a serious social and humanitarian dimension,” the Ombudsperson said.

The Ombudsperson reviews the situation of the Kosovo judiciary On the 17th of March 2005, as a conclusion to his review of the current situation of the judiciary in Kosovo, the Ombudsperson met with the President of the Kosovo Supreme Court, Justice Rexhep Haxhimusa, at the Supreme Court in Prishtinë/Priština. The main problems raised during the discussion were: there were too few judges and prosecutors on the district as well as on the municipal level; different problems faced by courts contributing to excessive length of procedure; the by far inadequate funding of the judiciary as a result of which people waited too long for judicial decisions; still not enough public or political awareness of the strengthening of the administration of justice, which is the main guarantor of the rule of law and the protection of basic rights of the population. These issues were also echoed in earlier meetings held with the Presidents of District Courts and District Prosecutors in Gjilan/Gnjilane, Mitrovicë/Mitrovica, Prizren/Prizren, Pejë/Peć and Prishtinë/ Priština. “Inadequate conditions seem to be one of the main problems faced by the Kosovo judiciary. It requires vigilant attention from UNMIK and local institutions. A strong judiciary should be kept as a high priority in Kosovo,” said the Ombudsperson.

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Staff of the new OIK field office in Gračanica/Graçanicë

In order to better serve the communities in Kosovo, the OIK opened the doors of a new field office in Gračanica/Graçanicë in February 2005. This office will be particularly important for the Serbian population which still faces difficult freedom of movement issues, compounded by considerable problems traveling to the Prishtinë/Priština HQ of the OIK. The head of the office is Ms. Aleksandra Dimitrijević. This new office joined the family of other similar offices situated in regions throughout Kosovo. Currently the OIK has regional offices in Pejë/Peć, Gjilan/Gnjilane, Prizren/Prizren, and in Mitrovicë/Mitrovica, including a sub office in North Mitrovica. The office in Gračanica/ Graçanicë is mainly financed thanks to a special grant from

the Austrian Development Agency of the Ministry of Foreign Affairs. “From the beginning, my concern has been to provide proper access to the Ombudsperson Institution to all residents in Kosovo. The initiative to open the Gračanica/Graçanicë office follows our understanding that a part of the population living in central Kosovo, particularly Serbs but also Roma, face certain difficulties in accessing the services of the Institution. I am sure that the office will considerably help to address this problem,” said the Ombudsperson. The Ombudsperson would like to take this opportunity to thank the Austrian government for their understanding of such a need and for contributing their financial support to this project.

Ombudsperson professional exchange program

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Ombudsperson Institution opens new field office in Gračanica/Graçanicë

During the month of February 2005, based on a joint project of the ODHIR (Office for Democratic Institutions and Human Rights) within the OSCE and the OIK, CRT lawyer Thëllënza Arifi was selected to be placed in the department which deals with children’s rights within the office of the Ombudsman Institution in Skopje, the Former Yugoslav Republic of Macedonia (FYROM). At the same time, as a part of the exchange, Ms. Diturije Elezi, a lawyer with the Ombudsman Institution of the FYROM, was selected to work within the investigations department within the OIK. The lawyers who participated in the exchange were involved in all daily activities within the host institutions, sharing their expertise in dealing with complaints, writing recommendation letters, and actively investigating cases. The next exchange is slated to take place in coordination with the Ombudsman of Montenegro in June 2005.

OIK internship winner The Ombudsperson would like to acknowledge Mr. Liridon Shurdhani who won an internship at the OIK from the 13th of January – 24th of February 2005. Mr. Shurdhani was awarded the scholarship at the OIK after having distinguished himself during the Kosova Case Challenge 2004 in Prishtinë/ Priština, organised by the World University Service (WUS). Students competed in teams of four to resolve a case in international law in a simulation of a trial before the International Court of Justice. The students prepared arguments in English and presented them in oral proceedings before a special jury.

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The Ombudsperson, Mr. Marek Antoni Nowicki with OIK intern, Mr. Liridon Shurdhani

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Interim measures: ● On the 1st of March 2005 the Ombudsperson sent an urgent request for interim measures to Ms. Melihate Tërmkolli, the Minister of Public Services, asking Ms. Tërmkolli to ensure that the Municipality of Gllogovc/Glogovac suspend the impending destruction and removal of business premises located on “Skënderbeu” Street in Gllogovc/ Glogovac, which the Ombudsperson considered to be contrary to an earlier court decision prohibiting, as an interim measure, the Municipality to demolish the property concerned until a final decision had been issued in the matter.

● On the 2nd of March 2005 the Ombudsperson, having received no response from the Ministry of Public Services, sent a similar request for interim measures to the SRSG, Mr. Søren Jessen-Petersen. In his letter, the Ombudsperson doubted whether the Ms. Tërmkolli had taken any action in the matter, as ten businesses had already been destroyed and the demolition of all businesses was set to continue. According to the Ombudsperson, it was for this reason that he had decided to address the matter directly to Mr. JessenPetersen, asking him to make use of the extraordinary powers vested in

him as SRSG to ensure that, at least until a final court decision would be issued by the Municipal Court in Gllogovc/Glogovac, no further buildings would be destroyed. In his letter, the Ombudsperson also stressed that he considered such behaviour on the side of the Municipality of Gllogovc/ Glogovac to be unacceptable and in blatant disregard to the rule of law and asked the SRSG to take due notice of the social impact of the case, which could cause the reputation of the local government institutions to suffer irreparable harm if such illegal actions were allowed to continue in this way.

CASES INVOLVING EVICTION DECISIONS ISSUED BY THE CLAIMS COMMISSION OF THE HOUSING AND PROPERTY DIRECTORATE (HPD) In February 2005 the Ombudsperson received many complaints involving applicants who, by decision of the HPD, had been ordered to abandon apartments that had been allocated to them in the 1980s by their former companies, but that had later been taken from them in a discriminatory and illegal manner. On one such case, the applicant’s former employer, the Amortisation Factory (Fabrika e Amortizerave) had allocated an apartment in Prishtinë/Priština to her in 1988. After having received the keys to the apartment, the applicant and her family had lived there from 1990 – 1994. In 1990, following the loss of Kosovo’s autonomy in 1989 and the ensuing enforcement of certain discriminatory measures in institutions all over Kosovo, the applicant and her family had been forcibly evicted by the police in the absence of a prior court decision. The apartment was then

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allocated to a former colleague of the applicant’s of Serbian ethnicity. After the 1999 conflict, the apartment was left vacant. The applicant and her family thereupon moved back and have been living there ever since. ● On the 15th of February 2005, the Ombudsperson sent an urgent letter to the SRSG, Mr. Søren Jessen-Petersen, noting that the fact that the applicant had been evicted from her apartment by an unlawful and discriminatory measure in 1994 raised serious doubts concerning the HPD’s decision to evict the applicant, as it appeared that in taking that decision, the HPD had not taken the applicant’s rights, received in 1988, into proper consideration. As none of the existing legislation foresaw the possibility of lodging any form of appeal or of taking any other ordinary or extraordinary legal remedy against decisions taken by the HPD Claims Commission and no administrative or

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judicial authority could interfere with such decisions, the Ombudsperson asked Mr. Jessen-Petersen to make use of the special and extraordinary powers vested in him through UN Security Council Resolution 1244 to suspend the execution of possibly unlawful eviction proceedings until all doubts concerning the validity of these actions had been removed. Another case involved five applicants, who also stated that in 1986, their former enterprise “Ibar Lepenci” had allocated their apartments to them, which at that time were still under construction. Following the loss of Kosovo’s autonomy and the ensuing enforcement of certain discriminatory measures in institutions all over Kosovo, this allocation decision had been revoked in 1991. Later that year, following the initiation of civil proceedings through the applicants, the Labour Court in Prishtinë/Priština had issued

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● On the 17th of February 2005, the Ombudsperson thereupon sent another urgent letter to Mr. Jessen-Petersen, in which he voiced similar concerns to those stated in his letter of the 15th of February 2005. Stressing that the validity of the allocation decisions granting the applicants certain rights on these apartments, the Ombudsperson asked Mr. JessenPetersen to make use of the powers vested in him to ensure that also in this case, the execution of the HPD’s decision be suspended until all doubts concerning the validity of these actions would be removed. He added that every day, he was receiving complaints regarding similar cases in which the applicants’ eviction was imminent. He enclosed a list of cases and informed Mr. Jessen-Petersen that he extended his request to these cases as well.

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● On the 25th of February 2005, following further complaints dealing with a similar subject matter, the Ombudsperson wrote a more general letter to Mr. Jessen-Petersen, stressing again that given the magnitude and importance of the matter, this issue required serious consideration. The Ombudsperson added that under the given circumstances, a solution should be found that would respond to the requirements of a diligent and fair administration of justice. Merely referring the persons involved to local courts could create an irreversible fait accomplis in many such cases, as this would not stop their eviction and would allow those persons staying in the apartments before 1999 to regain possession of the properties. As most of the latter were of Serbian ethnicity, many of the apartments concerned would eventually be sold to third parties, who would then acquire these apartments bona fide. As a consequence, the persons currently living in the apartments would lose all rights pertaining to these properties. For this reason, the Ombudsperson strongly recommended that all pending eviction proceedings involving allocation decisions that were taken in the eighties and that were later revoked under the Milošević regime be suspended and the cases reconsidered. Finally, the Ombudsperson considered that, in case all other options should fail, an adequate compensation should be envisaged as an alternative. The Ombudsperson never received any response to the above requests. However, since the applicants involved did not come to the Institution to complain about their evictions, he assumes that, at least for the moment, the execution proceedings in the above category of cases have been suspended.

Selection of positively resolved cases The following is a sample selection taken from among the 27 individual cases positively solved following the intervention of the Ombudsperson Institution during this quarter:

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a judgment confirming the validity of the original allocation decision of 1986 and ordering the “Iber Lepenci” enterprise to return the apartments to the applicants. The District Court rejected the enterprise’s appeal. In 1993, the competent district prosecutor refused to initiate criminal proceedings against the applicants, stating that he saw no reason to do so. In 1996, the Municipal Court of Prishtinë/Priština ordered certain third persons illegally occupying the apartments to abandon them, but this decision was never accepted by the management of the “Iber Lepenci” enterprise. Due to the conflict in Kosovo in 1999, the Municipal Court’s decision was never executed. After the conflict, the illegal occupants left Kosovo. Both they and the applicants lodged requests for repossession with the HPD Claims Commission, which then decided in favour of the former.

● On the 25th of February 2005 the Ombudsperson decided to strike a case of an applicant against the Municipality of Vushtrri/Vucitrn off the list. The applicant complained that there had been no final execution of a final court decision issued by the Municipal Court in Vushtrri/ Vucitrn to compensate the applicant. After the Ombudsperson’s intervention, on the 31st of January the applicant informed the Ombudsperson that he received the compensation in question. ● On the 4th of March 2005 the Ombudsperson decided to strike a case of an applicant against the Municipality of Gjakovë/Djakovica off the list. The applicant complained that the Municipality of Gjakovë/Djakovica failed to compensate her for her private property which was taken by the Municipality for general interest. After the Ombudsperson’s intervention, the applicant informed the Institution that the Municipality compensated her for expropriated property and now the property was registered in cadastre records in her name. ● On the 18th of March 2005 the Ombudsperson decided to strike a case of an applicant representing 24 other people against the Directory of Education in Mitrovicë/ Mitrovica of the list. The applicants complained that the Directory of Education in Mitrovicë/Mitrovica had not executed a final decision issued by the Municipal Court in Vushtrri/Vucitrn, adding that the Directory refused to follow the orders of the Municipal Court in Mitrovicë/Mitrovica, regarding the compensation of personal incomes of educational staff working in the Elementary School “Trepca” in Mitrovicë/Mitrovica. After the Ombudsperson’s intervention, the applicant informed the Institution that the Final Judgment of the Municipal Court in Mitrovicë/Mitrovica was executed and that all 24 applicants received compensation.

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Selected cases/responses and interventions (JANUARY - MARCH 2005)

● On the 17th of December 2004 the Ombudsperson wrote to the then Prime Minister of Kosovo, Mr. Ramush Haradinaj, to inform him of certain problems raised by a representative of the Serbian community from the Municipality of Obiliq/Obilić. According to him, there were 6000 Serbs, 2000 Roma and 3000 Albanians living in the town before the 1999 conflict. The representative pointed out that since the international community had entered the region, the majority of Serbs had been expelled. Until March 2004, there had been a total of 400 Serbs living in the Obiliq/Obilić Municipality who were then expelled during the violent events. Four months after these violent events, approximately 100 Serbs returned to the Municipality of Obiliq/Obilić. The Serbs who had returned alleged that the reconstruction of houses as well as the return of other displaced persons had been very slow. They also complained about the overall general lack of security for their people in the Municipality of Obiliq/Obilić. The Ombudsperson closed his letter appealing to Mr. Haradinaj to help the minority integrate socially into the municipality. On the 5th of January 2005 the Ombudsperson received a letter from the President of the Municipal Assembly in Obiliq/Obilić, Mr. Ismet Hashani, who provided him with a short overview of the work and situation in Obiliq/Obilić Municipality. Mr. Hashani informed that the freedom of movement had reached the highest level possible, while the Serbian community had been included in all aspects of life. Albanians and Serbs attended school together in Plemetin/ Plemetina, where Serbs were even being privileged because they attended classes on the school premises that had been built with the contribution of all residents of Plemetin/Plemetina, while Albanians attended classes in containers. In the town of Obiliq/Obilić, Serb pupils attended classes under satisfactory conditions in only one shift, while Albanians attended classes in overcrowded facilities in two

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shifts. Mr. Hashani also described that the Serbian community and all other communities living in Obiliq/Obilić Municipality enjoyed excellent health services, while a new health center in Plemetin/Plemetina was used only by Serbian staff and patients. Mr. Hashani also detailed efforts to reach out to Serbian IDPs and to create a returns task force. According Mr. Hashani, all efforts were being made in order to make the return and life of Serbs as good and sustainable as possible, while public information campaigns were being launched to discourage the Albanian community from buying or renting the houses of Serbs. Mr. Hashani stated that anyone who thought that Obiliq/Obilić was composed of one ethnicity was deeply wrong due to the large number of Serb families living in their houses and apartments, as the returns demonstrated. Mr. Hashani encouraged the Ombudsperson to verify the information he had detailed in his letter, as he and his colleagues were open to discuss any issue, especially regarding the Serb community. In closing, Mr. Hashani indicated that the Municipality’s cooperation with the Serb community was strong and that he and his colleagues were continually doing more for the purpose of a brighter future for the citizens of Obiliq/Obilić Municipality. __________ ● On the 11th of January 2005 the Ombudsperson sent a letter to the UNMIK Police Commissioner, Mr. Kai Vittrup, to alert him to a complaint raised regarding the closure of Mulla Idrizi St, located opposite the Police Station in Gjilan/Gnjilane, since 1999. According to the complaint, the closing of this road, which constitutes one of the main streets in Gjilan/Gnjilane, seriously impeded the freedom of movement and the transaction of different forms of business. Prior to UNMIK’s entering into Kosovo, the above-mentioned street was open to pedestrian and other kinds of traffic. According to the information available to the Ombudsperson, several requests had been addressed to UNMIK, the Kosovo

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Trust Agency and the Municipal Assembly in Gjilan/Gnjilane asking for this road to be reopened. Until that date, no response had been received to these requests. The Ombudsperson concluded by asking Mr. Vittrup to provide him with the reasons for closing Mulla Idrizi St and under what conditions it would be possible to reopen it in the foreseeable future. On the 15th of March 2005 the Ombudsperson received a response from Mr. Vittrup who wrote that his office had spoken with the Director of Operations for UNMIK Police, Mr. Colin Aitken, and the Deputy Commissioner of the Kosovo Police Service regarding, Mr. Richard Warren, the street closure. Mr. Vittrup indicated that the police station as well as the entire region would soon be transferred to the authority of the KPS and that UNMIK Police would cease operations with the exception of the monitoring force and a few specialised units. Mr. Vittrup wrote that the authority for the building was in the process of being transferred to the KPS and that Mr. Warren had alerted his office that the municipal authorities knew of the situation and they were looking for an alternate location for the police. Until then, Mr. Atiken had determined that for the safety and security of all those who use the building, the road would remain closed. __________ ● On the 2nd of June 2004 the Ombudsperson wrote a letter to the Head of the Republican Election Commission in Serbia proper, Mr. Zoran Perović, in which he noted that the election of a new Serbian President was coming up and drew Mr. Perović’s attention to the fact that according to the applicable Serbian law, every citizen of Serbia was eligible to vote. The Ombudsperson indicated that Serbs living abroad had had no problems delivering their votes in earlier elections. Days later, the Ombudsperson received a letter from Mr. Perović’s which explained that in practice, the Serbian authorities had no

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jurisdiction or competence in Montenegro that would enable them to organise the participation of IDPs staying there in Serbian elections. This prompted the Ombudsperson to write an urgent fax to the then Secretary-General of the Council of Europe, Mr. Walter Schwimmer, on the 8th of June 2004, informing him that these IDPs from Kosovo were deprived of one of the basic fundamental rights in a functioning democracy. A copy of this letter was sent to the Ombudsperson of Montenegro. On the 11th of June 2004 the Ombudsperson received a response from Mr. Schwimmer informing him that he had written to the Foreign Minister of Serbia and Montenegro, Mr. Vuk Drasković, urging him to speedily assure that all citizens of Serbia and Montenegro would be guaranteed their rightful participation in the democratic process. ● On the 20th of January 2005 the Ombudsperson received a response from the Deputy Ombudsperson of Montenegro, Mr. Budimir Scepanović, informing the Ombudsperson that he had not forgotten the letter of the 8th of June 2004 addressed to Mr. Schwimmer. Mr. Scepanović indicated that the Office of the Ombudsperson of Montenegro had addressed the issues raised to the President of the Assembly of the Republic of Montenegro and to the Republican Election Commission asking them to inform him whether they have been approached by the competent Serbian authorities with requests to make it possible for IDPs to vote in Montenegro. The Republican Election Commission had in turn informed the Office of the Montenegrin Ombudsperson that the competent authorities of Serbia had not requested the Commission to make it possible for IDPs temporarily staying in Montenegro to participate in the upcoming elections for the President of Serbia. Mr. Scepanović indicated that the Commission also informed his offices that according to the legislation on elections, the Republican Election Commission had no competences regarding the organisation of elections in the Republic of Serbia. Mr. Scepanović apologized for not having informed the Ombudsperson immediately upon having received the above-mentioned information. __________

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● On the 24th of November 2004 the Ombudsperson wrote a letter to the Special Representative of the SecretaryGeneral of the United Nations (SRSG), Mr. Søren Jessen-Petersen, to express his concerns about the lack of adequate support for thirty-five people who were forced from their homes during the March 2004 violence and who had been staying in 14 containers in Gračanica/Graçanicë. In the aftermath of the violence, the IDPs concerned had stayed at the KFOR camp “Slim Lines” and had shortly after been relocated to Gračanica/Graçanicë where they had first been sheltered in the school, then in containers across from the hospital. The Ombudsperson indicated that the conditions in the containers had already been intolerable in the summer, when one inhabitant had died of a heart attack due to the high temperatures in her container. The situation had gotten desperate since the temperature had suddenly dropped in autumn. The Ombudsperson described how the IDPs were living in the same clothes that they had been wearing when they had been forced from their homes and that they lacked the necessary heating, clothing and supplies for the winter. The Ombudsperson noted that although they had electric heaters, these heaters had not been working due to frequent electricity cuts. The Ombudsperson pointed out that a number of these IDPs were already quite old and infirm, some were children, some were suffering from mental illnesses and one woman had epilepsy. The Ombudsperson highlighted that the containers did not constitute appropriate living quarters and that so far, nothing had been done by the competent authorities to prepare for the oncoming winter. The Ombudsperson urged the SRSG to ensure that these IDPs received adequate means to survive the winter, considering that the return of displaced people was one of the topmost priorities of UNMIK. On the 27th of January 2005 the Ombudsperson received a response from a representative of the UNMIK Office of Returns and Communities (ORC), Mr. Abdullah Bojang, answering on behalf of the SRSG and informing the Ombudsperson that since November 2004, UNMIK had begun to take measures to address the needs of two specific groups of IDPs in Gračanica/Graçanicë: the group of individuals living in containers whose situation the Ombudsperson had highlighted and a group of individuals living

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temporarily in the gymnasium of Krajl Milutin school. Mr. Bojang wrote that, in coordination with the Municipality of Prishtinë/Priština and the Serbian and Montenegrin Red Cross, the ORC and the Prishtinë/Priština Civil Administration had facilitated the implementation of a project to provide temporary accommodation and a sustainable winter solution for the IDPs concerned. The project had been completed and funded by the Kosovo Government as a part of the UNDP Government Assistance to Returns (GAR) Programme. In December 2004, the 54 IDPs had moved into 21 containers provided by the Serbian and Montenegrin Red Cross. All the containers were fully winterised and included wood burning stoves. Water, sewage, kitchen, laundry, common area facilities and connections to electricity were also provided. The IDPs had also been provided with three cubic meters of wood and essential nonfood items and expected to receive winter clothes from the International Red Cross. Mr. Bogaj noted the 10,000 Euro contribution from the Prishtinë/Priština Municipality immediately following the March 2004 violence that specifically targeted urgent humanitarian needs of the IDPs.

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SELECTED CASES/RESPONSES AND INTERVENTIONS - JANUARY - MARCH 2005

__________ ● On the 4th of February 2005 the Ombudsperson wrote a letter to the President of the Kosovo Assembly, Mr. Nexhat Daci, to reiterate a position that he had expressed in a recent meeting with Mr. Daci with regard to the creation of a Human Rights Committee in the Assembly of Kosovo. While the Committee on the Rights and Interests of Communities and Return had existed within the Assembly for four years, there had so far been no initiative to create a committee responsible for raising other human rights issues of interest to the entire population of Kosovo. The Ombudsperson wrote that he considered the existence of such a committee to be a necessary requisite to ensure that the work of the Kosovo Assembly and the laws adopted by this body were in a position to meet international human rights standards. He added that he did not consider creating a new committee in the Assembly as useful, but rather suggested expanding the capacity of the competences of the Committee on the Rights and Interests of Communities and Return to include general human

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SELECTED CASES/RESPONSES AND INTERVENTIONS - JANUARY - MARCH 2005 rights and to change the name of the committee accordingly. The Ombudsperson outlined that the new responsibilities of the Committee would additionally involve inter alia reviewing draft laws for their compatibility with common values of international human rights law. Bearing in mind the importance of such a step with regard to the fulfillment of standards, the Ombudsperson closed the letter noting that it would greatly strengthen and facilitate the much needed cooperation between the Ombudsperson Institution and the Assembly in the field of human rights protection. __________ ● On the 5th of November 2004 the Ombudsperson wrote a letter to the Director of the Detention Center in Mitrovicë/Mitrovica, Mr. Don Scott, to alert him to the situation of two detainees in particular, who had complained that so far, no PTK telephone lines had been set up in the Detention Center, thereby making it very difficult for the detainees to maintain contact with their families and lawyers. Furthermore, the two detainees, who were of Albanian ethnicity, stated that they did not have enough light and air because the windows were closed with metal plates, which was apparently not the case in cells housing Serbian detainees. The two applicants stressed that the windows were also not very clean and could cause illness. The same two detainees also complained that they had no access to Albanian doctors or medical staff, despite the fact that in a post-conflict environment such as Kosovo, it was very necessary that all detainees have access to medical staff that they feel they could trust to give the appropriate medical treatment. Moreover, the two applicants complained that they were not able to receive family visits on weekends, which would ensure that their children did not lose any school days. At the same time, Serbian detainees were apparently permitted to receive visits on weekends. In addition, the applicants complained that visits from their lawyers were restricted. The Ombudsperson urged Mr. Scott to take proper steps in order to ensure that the problems raised by the detainees be properly taken into consideration, particularly when bearing in mind the number of Albanian detainees currently detained in the Detention Center in Mitrovicë/Mitrovica.

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On the 20th of December 2004 the Ombudsperson received a letter from the Director of the UNMIK Department of Justice (DOJ), Mr. Thomas Monaghan, informing him that according to senior officials from the Penal Management Division (PMD) of the DOJ, there had been difficulties with the telephone lines which had been beyond their control, but which they had lately managed to overcome. Apparently, a new connection had recently been installed that should remedy the earlier problems. Mr. Monaghan also informed the Ombudsperson that metal objects which had obstructed windows preventing light and air from entering the cells had been removed. Regarding the medical personnel, Mr. Monaghan continued by writing that the DOJ selected its staff on the basis of merit alone and not by nationality and that it would continue to do so. In closing, Mr. Monaghan indicated that of all detention centers in Kosovo, only Dubrava Prison had the facilities to offer weekend visits and denied that the Mitrovicë/Mitrovica Detention Center offered weekend visits to Serbian prisoners. In addition, legal visits were completely unrestricted- the PMD merely required some prior notice that a lawyer wished to see their client, such as a phone call a few hours ahead of the desired time. On the 11th of February 2005 the Ombudsperson responded to Mr. Monaghan highlighting that in a society in which there were no major problems between persons of different ethnicities, the Ombudsperson agreed that recruiting doctors and nurses only on the basis of expertise and professionalism was a valid and proper approach. The Ombudsperson pointed out that in Kosovan society, which was still recovering from an armed conflict that was largely based on hostilities between ethnic groups, he was not convinced whether such an approach took the reality of the life in the reality of life here properly into account. The Ombudsperson highlighted that the relationship between doctor and patient relied on confidence, which was especially true in the case of detainees who were not at liberty to choose their own doctors. In such circumstances, the Ombudsperson found it understandable that prisoners would only trust a doctor originating from their own ethnicity and speaking their own language.

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He continued to write that this was not only the problem with regard to Albanian detainees in North Mitrovicë/Mitrovica, but would pose the same question if Serbian or Roma detainees were detained in prisons in central Kosovo. Bearing in mind such realities, the Ombudsperson urged Mr. Monaghan to ensure that the Albanian prisoners in the Mitrovicë/ Mitrovica Detention Centre be provided with medical service by a sufficient number of Albanian doctors and nurses that they would be able to place their trust in. On the 14th of March 2005 the Ombudsperson received a response from Mr. Monaghan indicating that he had conferred with the relevant authorities in the Penal Management Division/ Kosovo Correctional Services (PMD/KCS), including its Head, Mr. William Irvine, and the Head of the Medical Service, Mr. Annibale Petrone, regarding this issue. The result of these inquiries, wrote Mr. Monaghan, confirmed that the medical and nursing staff at the North Mitrovicë/Mitrovica PMD/KCS facility did not comprise members of the Kosovo-Albanian community, due to security concerns relevant to the Municipality of Mitrovicë/Mitrovica. Mr. Monaghan stressed that the PMD/KCS had exemplary commitment to the representation of all communities in its mainly Kosovan staff and detailed the staff breakdown by community. Mr. Monaghan added that the PMD/KCS specifically confirmed that the medical and nursing staff of the North Mitrovicë/Mitrovica facility was dispensing excellent care, in a professional manner, to all prisoners and detainees regardless of ethnic origin, in full compliance with the Hippocratic Oath and codes of ethics. He also acknowledged that the trauma caused by the recent conflict could justify the refusal by a prisoner or detainee to be treated by a doctor belonging to a particular community. Mr. Monaghan wrote that he concurred with the PMD/ KCS that such trauma needed, as a prerequisite, to be diagnosed by another doctor with the relevant expertise, called by the director of the facility upon notification by the physician on duty that a prisoner or detainee refused treatment. When such a diagnosis was made, Mr. Monaghan wrote that he agreed with the Ombudsperson that the patient should be offered treatment by a doctor whom he or she could trust, or if necessary be transferred to a PMD/KCS facility where such a doctor was available. Mr. Monaghan indicated

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that this had always been the policy of the PMD/KCS. However, Mr. Monaghan wrote that he disagreed with the general policy suggested by the Ombudsperson, indicating that such a practice or policy ran the risk of defeating the purpose of the Ombudsperson’s recommendation, while it also ran counter to democratic principles on which the PMD/KCS was run: the rehabilitation of all prisoners and the continuance of social peace in and outside detention facilities, during and after a person’s detention in a PMD/KCS facility. Mr. Monaghan added that such a policy would generate endless complaints from detainees of various backgrounds asking to be treated by a PMD/KCS doctor or nurse of their choice, thus placing the prisons and detention centers throughout Kosovo under serious threat of social unrest. Mr. Monaghan concluded that in the absence of a diagnosis of a posttraumatic stress disorder, or of any other valid reason to refuse treatment by the available PMD/KCS doctor, a prisoner or detainee could still, like any other prisoner or detainee, waive his or her right to free medical treatment by the PMD/KCS and choose to call upon the services of a physician of his or her own choice, provided that he or she bore the related costs. __________ ● On the 11th of February 2005 the Ombudsperson sent a letter to the Chairperson of the Judicial and Prosecutorial Council in Kosovo (KJPC), Mr. Robert Carolan, to inform him that the OIK was dealing with a considerable number of cases involving complaints regarding the length of court proceedings in Municipal Courts in Kosovo, including the Municipal Courts in Ferizaj/Uroševac and Viti/Vitina. The Ombudsperson mentioned that one report concerning the situation in the Municipal Court of Prishtinë/ Priština had been issued in December 2004, while similar reports were currently being prepared on the Municipal Courts in Pejë/Peć and in Prizren. The Ombudsperson wrote how he had repeatedly asked the presidents of the respective municipal courts about the reasons for the delays in court proceedings in particular civil cases. Their answers were usually the same, namely that the main problem was a lack of sufficient judges to deal with a growing case load. The Ombudsperson indicated that according to the presidents of the respective municipal courts, they

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had addressed several requests to the Judicial and Prosecutor Council and to the UNMIK Department of Justice asking for an increase in the number of judges working for their courts. However, these requests had so far not led to an adequate response. The Ombudsperson urged Mr. Carolan to act upon the above request by adjusting the number of judges in the already mentioned municipal courts to the number of cases waiting to be resolved by these courts, so that these courts would finally be able to conduct court proceedings in compliance with the guarantees inherent in Article 6 of the European Convention on Human Rights, in particular the ones stipulating that court proceedings should be conducted within reasonable time. On the 9th of March 2005 the Ombudsperson received a response from Mr. Carolan in which he addressed, among other things, the general problem of the length of proceedings before courts in Kosovo. In his letter dated 7 March 2005, Mr. Carolan informed the Ombudsperson that in order to resolve the overall problem of the excessive length of court proceedings all over Kosovo, he supported an approach that aimed at identifying the factors determining the current length of court proceedings and at working on further improving the capacity of judges and prosecutors to solve and manage cases effectively. He also supported the idea of providing a new staffing plan that, based on objective and comprehensive criteria, would better reflect the number and character of the caseloads faced by the courts. Mr. Carolan further informed the Ombudsperson that the KJPC and the UNMIK Department of Justice had already initiated a series of relevant initiatives with regard to the length of court proceedings, such as the so-called Case Flow Management and Delay Reduction Project focusing on the court management process by tracking civil cases from filing to disposition and a review of delayrelated procedural reforms recently undertaken in the Balkan region, in particular newly approved Bosnian law reforms geared towards increasing efficiency and reducing delay in civil proceedings. The Department of Justice would also be creating several legislative working groups with its local and international partners in order to propose amendments to current procedural laws aimed at reducing the length of court proceedings. A team of

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European and US specialists had recently prepared an assessment of the judiciary and prosecutorial system of Kosovo and, based on this assessment, had proposed a new staffing plan for the entire court system in Kosovo. This plan was expected to better reflect current and future actual personnel needs of the system and had been presented and discussed on 3 and 4 February 2005. Work on updating the proposed staffing plan was currently being undertaken by an international specialist and the final staffing proposal had yet to be agreed upon. Therefore, the KJPC had not been in a position to advertise posts for specific courts in this regard. Considering that the above broad-based exercises provided the best basis for efficiently addressing the issue of the length of court proceedings in Kosovo, Mr. Carolan found it reasonable to await the completion of these exercises.

OMBUDSPERSON

SELECTED CASES/RESPONSES AND INTERVENTIONS - JANUARY - MARCH 2005

__________ ● On the 18th of February 2005 the Ombudsperson wrote a letter to the Director of the Department of Justice (DOJ), Mr. Thomas Monaghan, to alert him to a series of complaints he had received regarding the requirements for submitting pleadings to the Special Chamber on Kosovo Trust Agency Related Matters within the Supreme Court of Kosovo. According to the Ombudsperson, the complaints mainly focused on the fact that pleadings and supporting documentation submitted to the Special Chamber of the Supreme Court in Albanian or Serbian language also needed to be accompanied by an English translation of all pleadings and supporting documents. At the same time, such translations had to be performed at the cost of the respective party. Bearing in mind that that three official languages of Kosovo were Albanian, Serbian or English, the Ombudsperson considered that all three of these languages should be given the same importance. However, obliging all persons submitting pleadings to the above Special Chamber to translate all documents into English imposed a considerable financial burden on them, which in his opinion constituted an unnecessary obstacle to the exercise of these persons’ right of access to court. The Ombudsperson urged the DOJ to examine Section 22.7 of the Administrative Direction implementing the UNMIK Regulation 2002/13 on the Establishment of the Special Chamber of the Supreme Court of Kosovo on Kosovo

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SELECTED CASES/RESPONSES AND INTERVENTIONS - JANUARY - MARCH 2005 Trust Related Matters to find a solution that would be mutually beneficial to both the judges sitting on the Special Chamber and the parties involved in proceedings before the chamber. On the 9th of March 2005 the Ombudsperson received a response from Mr. Monaghan in which he referred to Section 22.7 of UNMIK Administrative Direction No 2003/13 implementing UNMIK Regulation 2002/13 on the Establishment of a Special Chamber of the Supreme Court of Kosovo in Kosovo Trust Related Matters, indicating that indeed it contained the requirement for an English translation of pleadings. Mr. Monaghan then cited two subsequent sections 22.8 and 22.9 pointing out that a party could submit an application to the Presiding Judge for assistance in the translation of pleadings and supporting documents and that the Presiding Judge could also direct that the translation of pleadings and supporting documents required by Section 22.7 be undertaken at the expense of the Special Chamber where he or she determined that it was reasonable to so direct having regard to the means of the party. Mr. Monaghan wrote that the Presiding Judge of the Special Chamber had received a number of applications requesting assistance for translations, with each application being judged on its own merits. Mr. Monaghan concluded that as the legislation provided for assistance with translations for parties suffering proven financial hardship, there was no unnecessary obstacle to any persons’ right of access to court, especially when also taking into consideration the fact that access to the Special Chamber was, at the moment, free of charge. __________ ● On the 1st of December 2004 the Ombudsperson wrote a letter to the SRSG to inform him of a complaint that he had received from Mr. Slaviša Dobričanin, Head of the Office for Exhumation and Identification of the Serbian Coordination Centre for Kosovo and Metohija, whose office is responsible for the exhumation and identification of Serbs and other nonAlbanians murdered before, during and after the 1999 conflict. The Ombudsperson described how Mr. Dobričanin complained that the process of exhuming and identifying the mortal remains of Serbs and

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other non-Albanians in Kosovo had been conducted in a very slow manner. The Ombudsperson asked the SRSG to review the matter and to take all necessary measures in order to find a proper solution. The Ombudsperson also asked the SRSG to inform him about his reaction to Mr. Dobričanin’s allegations and about any action he planned to take in this regard. ● On the 18th of February 2005 the Ombudsperson received a letter from the SRSG informing him that the Office of Missing Persons and Forensics (OMPF) of the UNMIK Department of Justice (DOJ) had, since its creation in June 2002, conducted extensive exhumations

of missing persons to be of the highest importance and would continue to do his utmost to resolve it. __________ ● On the 21st of February 2005 the Ombudsperson sent a letter to the SRSG to draw his attention to a problem faced by a growing number of citizens, who had been referred to the Special Chamber of the Supreme Court on Constitutional Framework Matters by ordinary courts in Kosovo. According to the law applicable in Kosovo, this Chamber was competent to evaluate the constitutionality of certain administrative decisions. The

The Ombudsperson with then Prime Minister of Kosovo, Mr. Ramush Haradinaj

in Kosovo. According to the SRSG, 1170 exhumations had been conducted related to victims of all ethnicities, on a nonprejudicial basis. The SRSG noted that it was the responsibility of the International Commission of Missing Persons (ICMP) and not the OMPF to carry out DNA testing. The SRSG pointed out that the OMPF’s latest bi-annual report at that time had indicated the number of samples of ethnic Albanian and non-Albanian victims sent for DNA testing to the ICMP and the number of results received. The SRSG added that Mr. Dobričanin and/or his representatives had participated personally in most exhumations and post-mortem exhumations carried out in Kosovo. The SRSG concluded that he considered the issue

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Ombudsperson indicated that, according to the information available to him, in May of 2003, the President of the Supreme Court of Kosovo had sent the draft of an Administrative Direction to the former SRSG. This Administrative Direction was meant to regulate the establishment and work of the above-mentioned body. According to the President of the Supreme Court, he had so far not received any feedback from the former SRSG nor the current SRSG on this draft. Considering the importance of the matter and the fact that more and more people were being directed to lodge complaints with a Special Chamber that was still not operative, the Ombudsperson urged the SRSG

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to inform him at which stage the preparations for the establishment and work of the Special Chamber of the Supreme Court on Constitutional Framework Matters were at that time. __________ ● On the 28th of February 2005 the Ombudsperson received a letter from the Executive Director of the NGO ARTICLE 19 (Global Campaign for Free Speech), Dr. Agnes Callamard, on behalf of the Chairman of the Association of Professional Journalists in Kosovo, Mr. Naser Miftari and the Director of the Advocacy, Training and Resource Centre, Mr. Kreshnik Berisha regarding an aspect of the Provisional Criminal Code of Kosovo. Dr. Callamard urged the Ombudsperson to use his influence in his position to raise the issues of Kosovo’s criminal defamation provisions which breached international standards of freedom of expression. Dr. Callamard noted that ARTICLE 19 had sent a letter to then UNMIK Deputy Special Representative for Police and Justice, Mr. Jean-Christian Cady, drawing his attention to the fact that no one had been imprisoned for defamation in established democracies for several years and urging the international authorities to remove criminal insult and libel from the then draft Criminal Code and replace them with appropriate civil law provisions. Dr. Callamard outlined that penal sanctions of up to three months’ imprisonment for insult and for libel were currently in force under the Provisional Criminal Code of Kosovo (PCCK) and highlighted a recent case involving a Kosovo journalist imprisoned for 6 months after being found guilty of libeling the local Human Rights Defense Council in Prizren, suggesting the readiness of the Kosovo Courts to impose harsh penalties. According to Dr. Callamard, such sanctions were not congruent with the proportionality requirement established in the European Court of Human Rights. Dr. Callamard wrote that Article 19 was calling for a complete abolition of criminal defamation provisions and was supported by the three international mandates set up to defend and promote the fundamental right to freedom of expression. In her letter, Dr. Callamard described that other countries were making steps to begin decriminalizing defamation. Dr. Callamard pointed out that as Kosovo was embarking on reform in a number of areas

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in advance of possible status talks, she believed that the time was right for authorities to revisit the balance which should be set between the right to freedom of expression and the right to reputation by using civil law remedies rather than criminal sanctions. Dr. Callamard indicated that a precedent in the region had already been established by the international community when it supported the abolition of criminal defamation provisions in Bosnia in 2001 and replaced them with a civil defamation law. Dr. Callamard wrote that she saw no reason why the same standard could be applied in Kosovo and urged the Ombudsperson to bring the matter to the attention of the relevant authorities in Kosovo. On the 2nd of March 2005 the Ombudsperson wrote to the SRSG alerting him to the letter summarised above in which the above organisations had raised the issue of the PCCK’s criminal defamation provisions and were, according to them, in breach of international standards of the freedom of expression. In his letter, the Ombudsperson reiterated the series of points underscored by ARTICLE 19 in the letter summarised above. The Ombudsperson wrote that he fully supported the request and asked the SRSG to use the powers vested in him to ensure that the respective provisions in the PCCK be amended, so that this part of the Kosovan criminal law would in future be in line with the general international human rights standards. __________ ● On the 11th of October 2004 the Ombudsperson wrote a letter to the DSRSG for Police and Justice, Mr. JeanChristian Cady, to raise the problem of the accountability of international judges and prosecutors in Kosovo. In his letter, the Ombudsperson highlighted a case that was brought to him concerning the alleged misconduct of an international prosecutor, concerning which Mr. Tadej Rodiqi, Acting Chairperson of the Kosovo Judicial and Prosecutorial Council, had confirmed the Ombudsperson’s assessment that the Judicial and Prosecutorial Council only had competence with regard to the local judiciary and not over international judges and prosecutors. The Ombudsperson added that when he had raised this matter with Mr. Thomas Monaghan, Director

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of the UNMIK Department of Justice, and asked him which body was responsible for investigating into any alleged misconduct of international prosecutors and judges, Mr. Monaghan had also not been able to offer a satisfying answer. The Ombudsperson noted that following this, he could only reach the conclusion that there was no body responsible for such a task, which seemed to imply that while local judges and prosecutors could be the subject of disciplinary investigations in case of misconduct, international judges and prosecutors were under no such supervision. Such double standards greatly undermined the efforts of UNMIK to build a legal system that was in accordance with European principles and values. The Ombudsperson closed his letter asking the SRSG to inform him whether UNMIK planned to take any steps to put an end to this intolerable situation.

OMBUDSPERSON

SELECTED CASES/RESPONSES AND INTERVENTIONS - JANUARY - MARCH 2005

On the 1st of March 2005 the Ombudsperson received a response from Mr. Monaghan, informing him that the Department of Justice (DOJ) had subsequently carried out an analysis of the legislative framework which applied to the appointment and removal from office of international judges and prosecutors (IJPs). Mr. Monaghan highlighted that the Ombudsperson had correctly pointed out that neither the Kosovo Judicial and Prosecutorial Council (KJPC), nor the Judicial Inspection Unit (JIU) of the DOJ possessed any oversight or investigatory functions in relation to the IJPs, as they did with Kosovan judges and prosecutors. Mr. Monaghan continued that the IJPs performed their functions under a different mandate and institutional arrangement to that under which Kosovan judges and prosecutors operated. Mr. Monaghan explained that the IJPs were appointed by the SRSG. Section 1 of UNMIK Regulation 2000/6 governed their appointment and removal from office and vested in IJPs the authority to perform their functions of office, including the responsibility to assume jurisdiction over new and pending criminal cases and to conduct criminal investigations. Mr. Monaghan also cited Section 4 of the same Regulation explaining that it expressly provided for the removal from office of IJPs on the grounds of serious misconduct, failure in the due execution of office by virtue of their personal conduct or otherwise. Mr. Monaghan indicated that IJPs were subject to United Nations rules and regulations in

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OMBUDSPERSON

respect of their professional performance and personal conduct. Furthermore, Mr. Monaghan continued to write that most IJPs retained their appointments in their national jurisdictions whilst employed with the UNMIK rule of law programme and that those jurisdictions retained ultimate control over their appointment and practicing certificates. Mr. Monaghan acknowledged that the citizens of Kosovo deserved a right of recourse to a regulatory body that would investigate and adjudicate upon allegations of professional misconduct in relation to IJPs, however the system whereby IJPs were integrated in the Kosovan justice system was unique and unprecedented in UN peacekeeping operations. Even so, Mr. Monaghan wrote that the DOJ was currently considering establishing such a regulatory body that would be tasked to submit its recommendations to the authority that was competent to take appropriate disciplinary action against the IJPSs, such as the SRSG, the UN administration, or the national jurisdiction of the respective IJPs. __________ ● On the 4th of March 2005 the Ombudsperson sent a letter to the Minister of Interior of Italy, Mr. Giuseppe Pisanu, the Minister of Interior of Germany, Mr. Otto Schily, and the Minister for Migration and Asylum Policy of Sweden, Ms. Barbro Holmberg, to draw their attention to the situation of certain refugees from Kosovo of Roma, Ashkali and Egyptian ethnicity staying in their respective countries. The Ombudsperson wrote that he had been receiving information that these countries intended to return these persons to Kosovo in the near future. Bearing in mind the situation in Kosovo, the Ombudsperson strongly advised the above Ministers to reconsider such a plan. The Ombudsperson noted that most Roma, Ashkali and Egyptians lived in very miserable conditions in Kosovo and that the high unemployment in Kosovo affected members of ethnic minorities even more than members of the Albanian majority. He added that Roma, Ashkali and Egyptians had very limited access to public services and justice and that their opportunities for a normal life and a sustainable livelihood were extremely restricted. The Ombudsperson wrote that there had been riots in March of 2004, in the course of which a violent and angry mob had conducted organised attacks not only against members of the

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Serbian minority, but also against other persons of non-Albanian ethnicity. The Ombudsperson noted that neither UNMIK, nor KFOR, nor the local police were able to adequately guarantee these persons’ safety at that time. The Ombudsperson acknowledged that although one year after these violent events, the general security situation had slightly improved, it nevertheless remained volatile and still did not allow persons of the above ethnicities to lead a peaceful and safe life. The Ombudsperson also cited the Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo S/2005/88 of 14 February 2005 which stated that “the Government has not taken sufficient action to punish ethnically targeted crime, to put in place a system to monitor and censure violations of the language laws, and to promote a culture of human rights and tolerance.” Based on this information and the Ombudsperson’s day to day assessment of the situation in Kosovo, the Ombudsperson considered that returning persons of Roma, Ashkali and Egyptian ethnicity to Kosovo would involve considerable risks and hardships for these persons. He concluded his letter by reiterating his request that the respective countries re-evaluated the position on sending these persons back to Kosovo, at least for a certain period of time. On the 14th of March 2005 the Ombudsperson sent a letter to the Home Secretary of the United Kingdom, Mr. Charles Clarke MP, to alert the UK government to his position regarding certain countries which intended to follow through on a plan to send refugees of Roma, Ashkali and Egyptian ethnicity back to Kosovo in the near future. The Ombudsperson reiterated the issues he had raised in his letter to the competent Ministers of Italy, Germany, and Sweden as summarised above and warned that returning Roma, Ashkali and Egyptian refugees would not be consistent with international human rights standards. The Ombudsperson received a response dated the 24th of March 2005 from the Head of the Department of Migration, Integration, Refugees, and European Harmonisation within the German Ministry of the Interior, Dr. Gerhold Lehnguth, on behalf of the Minister of Interior of Germany, Mr. Otto Schily. In his letter, Dr. Lehnguth wrote that following the rioting in March 2004, returns of Ashkali and Egyptians remained suspend-

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ed. Regarding the returns of Roma, the Memorandum of Understanding between UNMIK and Germany of 31 March 2003 still applied, which outlined that members of the Roma and Serb minorities were exempt from returns until further notice. Dr. Lehnguth added that the German government was still in regular contact with UNMIK regarding ongoing developments and that returns were only carried out in close consultation with the responsible UN administration in Kosovo. __________ ● On the 22nd of March 2005 the Ombudsperson sent a letter to the Director of the Department of Justice, Mr. Thomas Monaghan, to alert him to certain complaints from a number of inhabitants in Kosovo regarding the inadequate care and treatment for drug addicts in Kosovo. According to the Ombudsperson, these complaints were mainly submitted by parents or close relatives of persons consuming narcotics. The Ombudsperson added that he had received a petition from a number of citizens in which they raised their concerns regarding the aggressive and unsocial behavior of this category of individuals in the environment they lived in. As the majority of these individuals had not committed a criminal offence, the competent judiciary was not able to order protective measures such as compulsory treatment in health institutions. The Ombudsperson noted that what further exacerbated the situation was the lack of institutional care in Kosovo and that apparently certain patients placed in health institutions continued to take drugs that could be easily obtained from dealers that operated in the hospitals. The Ombudsperson closed his letter asking Mr. Monaghan to inform him of any actions planned or taken to solve the matter. ● On the 15th of April 2005 the Ombudsperson received a response from Mr. Monaghan agreeing with the Ombudsperson’s assessment that there were inadequate facilities in Kosovo to care for persons addicted to drugs, whether they were convicted of a criminal offence or not. Mr. Monaghan wrote that the Ombudsperson’s concerns would be better addressed with the PISG’s Ministry of Health as the DOJ was not in a position to address issues such as access to illicit drugs in hospitals or the behavior of hospital patients.

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● From the 6th – 8th of January 2005 a group of lawyers from the OIK participated in a training on “Human Rights Education” in Prishtinë/Priština organised by the European Training and Research Centre for Human Rights and Democracy (ETC), the Human Rights Centre of the University of Prishtinë/ Priština, and the World University Service - Austria.

● On the 25th of February 2005 lawyers from the Institution, participated in a professional training session organised by the OIK and held by representatives of the Slovenian Ombudsman Office at the OIK’s headquarters in Prishtinë/Priština. The training concerned practical aspects related to the protection and promotion of children’s rights.

● On the 31st of March 2005 CRT lawyer, Ms. Thëllënza Arifi, participated in a workshop aimed at promoting the rights of people with disabilities in Kosovo organised by the Association of Paraplegics and Handicapped Children of Kosovo (HANDIKOS) and supported by the Finnish-OHCHR and held in Prishtinë/Priština.

OMBUDSPERSON

Conferences and workshops:

● On the 27th of January 2005 Ms. Dragana Ristic, a senior lawyer with the OIK, participated in the “Seminar on Data Protection” in Brussels, Belgium organised by IREX in cooperation with the European Commission. The aim of the workshop was to provide training and advice on Data Protection in the Internal Market. ● On the 18th of February 2005 the CRT coordinator, Violeta Krasniqi Rexha, participated in a round table on the proceedings regarding child custody following parental divorce organised by the NGO Norma in Prishtinë/Priština.

The Ombudsperson of Macedonia, Mr.Ixhet Mehmeti (L), the Deputy Ombudsperson of Albania, Mr.Jorgo Drahmi (C) and the Deputy of Ombudsperson of Kosovo, Hilmi Jashari (R)

● Mr. Naim Krasniqi, head of the OIK’s field office in Mitrovicë/Mitrovica was a speaker at two separate workshops organised by the Advocacy Training and Resource Centre and the Institute for Non-for-profit Law (IKDO) on 18th – 19th February and 24th – 25th February 2005 in Prishtinë/Priština. Mr. Krasniqi spoke about the Role of the OIK in the process of requesting official documents according to the Law on Access to Official Documents, in particular in the appeals proceedings initiated after a request for access to an official document is refused by an entity.

● The Deputy Ombudsperson, Mr. Hilmi Jashari, attended the 9th Round Table of European National Ombudspersons in Copenhagen which took place on the 31st of March – 1st of April 2005. The event was organised by the Commissioner for Human Rights of the Council of Europe, Mr. Alvaro Gil-Robles and the Danish Ombudsman, Mr. Hans Gammeltoft-Hansen. Mr. Jashari was among the over one hundred participants from across Europe who attended with the aim to strengthen ties between different Ombuds Institutions and to develop the OIK’s relations with the Council of Europe.

Serbs slowly make their return back to Kosovo

Published commentaries of the Ombudsperson: During this quarterly period, the Ombudsperson’s bi-weekly column “Off the record” appeared in the Kosovo Albanian daily newspaper Koha Ditore, the Belgrade-based daily Danas, the Bosnian Serb News Agency, SRNA, and the French language web based publication Le Courrier des Balkans. “Off the record” also appeared during this period on the English language web-based publication of Transitions Online. Titles include: 18 4 18 4 21 7

An old returnce in Grabac/Grabec.

January - March 2005

March 2005 March 2005 February 2005 February 2005 January 2005 January 2005

“To be or not to be... a Kosovo judge” “Rule of Convenience” “A Hard look” “It is not enough to be the good guys” “Invisible” “Children and Environment”

The commentaries can be viewed on the website: www.ombudspersonkosovo.org

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How to contact the OIK?

The OIK is located in Prishtinë/Priština. Its structure comprises four regional field offices in Gjilan/Gnjilane, Pejë/Pec, Mitrovica, Prizren and Gračanica/Graçanicë: The field office in Mitrovica has a sub-office in the northern part of the city. PRISHTINË/PRIŠTINA Ombudsperson Institution in Kosovo, Agim Ramadani St. (ex-"Kosovodrvo" building) Prishtina, Pristina Tel: +381 (0) 38 501 401/545 303, Hotline: +381 (0) 38 548 087 Fax. +381 (0) 38 545 302 Email: ombudspersonkosovo@ombudspersonkosovo.org Web site: www.ombudspersonkosovo.org

FIELD OFFICES GJILAN/GNJILANE: “28 November” St. Municipality Building II Tel: +381 (0)280 20 843 Head of the Office: Mr. Goroljub Pavić. PEJË/PEČ: Republic Square, (Ex: 17 Nentori building) I Floor, No. 1 Tel: +381(0)39 32 931 Head of the Office: Ms. Ilirjana Çollaku. MITROVICA: Queen Teuta, nn, Security Zone Tel: +381 (0) 28 30 138 Head of the Office: Mr. Naim Krasniqi. MITROVICA SUB-OFFICE Trepca Annex Filipa Vishnjica 4 Ms. Miljana Sćekić. Tel: +381 (0) 63 817 44 79 +377 (0) 44 393 181

Persons interested in the OIK's activities are invited to take the opportunity and visit the OIK website in order to access the information included in this Quarterly Information Sheet online.

www.ombudspersonkosovo.org

Schedule Open Days with the Ombudsperson (or his Deputy) PRISHTINË/PRISTINA 07 April 2005 21 April 2005 15 May 2005 19 May 2005 02 June 2005 02 June 2005 30 June 2005 PEJË/PEČ 13 April 2005 09 May 2005 06 June 2005 MITROVICA 03 May 2005 30 May 2005 28 June 2005 PRIZREN 25 April 2005 23 May 2005 14 June 2005

PRIZREN: “Mosa Piajade” str. OSCE RC, II, no.20 Tel: +381(0) 29 44 200, ext.109 Head of the Office: Acting Ms. Hunaida Pasuli

GJILAN/GNJILANE 18 April 2005 12 May 2005 09 June 2005

GRAČANICA/GRAÇANICË: Head of the Office: Aleksandra Dimitrijević Tel: +381(0) 63 73 8 73 73 +381(0) 38 64 606

GJAKOVË/DJAKOVICA 27 April 2005 25 May 2005 22 June 2005 GRAČANICA/GRAÇANICË 23 June 2005

For your rights! 20

The Quarterly Information Sheet was prepared by Ms. Kata Mester, International Advisor to the Ombudsperson on Media and Public Relations in cooperation with Ms. Alice Thomas, International Advisor to the Director of Investigations .

Q U A R T E R LY I N F O R M A T I O N S H E E T

The Ombudsperson Institution in Kosovo would like to thank the generosity of the Government of Belgium which financed the publication of the Quarterly Information Sheet through a special grant. prepress@xhad.net

January - March 2005

Informator05_eng  

OIK internship winner The Ombudsperson would like to acknowledge Mr. Liridon Shurdhani who won an internship at the OIK from the 13th of Ja...