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Page:Kosovo OSCE Legal System Monitoring Section Monthly Report - August 2008.djvu/2

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Understaffing of UNMIK Department of Justice and uncertainty regarding the deployment of the European Union Rule of Law Mission in Kosovo cause unnecessary delays in criminal proceedings and affect rights to liberty of detainees and to a trial within a reasonable time

The OSCE Mission in Kosovo (OSCE) is concerned that UNMIK Department of Justice understaffing and uncertainty regarding the deployment of the European Union Rule of Law Mission in Kosovo (EULEX) has resulted in significant delays in criminal proceedings. This negatively impacts the rights of defendants to a trial within a reasonable time and to liberty for defendants in detention on remand.

1. Background

Under UNMIK Regulation 2000/64, as amended, "[f]or the purpose of ensuring the independence and impartiality of the judiciary and the proper administration of justice" the prosecutor, accused or defense counsel may request the UNMIK Department of Justice for an assignment of international prosecutors or judges or a change of venue in criminal proceedings. Thus, many serious criminal cases, including those involving allegations of war crimes or interethnic violence, involve international prosecutors and judges. The UNMIK Department of Justice is currently handling 82 cases involving 198 defendants where an indictment has been filed. 2 It was anticipated that after 15 June 2008 UNMIK Department of Justice would gradually transfer its competencies to another institution. 3 In light of this development, on 21 April 2008 the UNMIK Department of Justice sent an internal email entitled "Clarification of Processing and Handling of Cases" instructing that judges shall "continue to process cases and assign judges to the next step of the proceedings in new and pending cases so long as the in-court proceedings, e.g. confirmation of the indictment, judgment, etc., can be completed no later than 14 June 2008."4 It is now expected that with the reconfiguration of UNMIK, 5 the Department of Justice will transfer some competencies, including executive authority in criminal cases, 6 to EULEX. 7 Although UNMIK held "discussions [with EULEX] on future

1 UNMIK Regulation 2000/64, On the Assignment of International Judges/Prosecutors and/or Change of Venue as amended by UNMIK Regulations 2001/34, 2005/50, 2006/60, and 2007/21.

2 DOJ Ongoing Case Transition Report No. 15, 31 July 2008. This figure does not reflect cases at the pre-trial stage.

3Initially, it was expected that EULEX would assume many of UNMIK's competencies. However, to date this has not occurred.

4Internal UNMIK Department of Justice e-mail of 21 April 2008.

5 See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2008/354, of 12 June 2008, paragraph 19.

6 See Council Joint Action 2008/124/CFSP, On the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO, 4 February 2008.

7 In its latest report to the Security Council, the UN Secretary-General stressed that since "UNMIK can no longer perform as effectively as in the past the vast majority of its tasks" it should "allow for the European Union to take on an increasing role in the rule of law sector" (Report of the Secretary-