The Kosovo Specialist Chambers and Specialist Prosecutor’s Office

On August 3, 2015, the Assembly of Kosovo amended its Constitution[1] and passed the Law on the Specialist Chambers and the Specialist Prosecutor’s Office (the Law).[2] These two judicial institutions were established within the justice system of Kosovo to investigate, prosecute, and try “international crimes committed during and in the aftermath of the conflict in Kosovo, which relate to those reported in the Council of Europe Parliamentary Assembly Report Doc 12462 of January 7, 2011 (The Council of Europe Assembly Report) and which have been the subject of criminal investigation by the Special Investigative Task Force (SITF) of the Special Prosecution Office of the Republic of Kosovo (SPRK).”^[3] A Host State Agreement was signed between Kosovo and The Netherlands on February 15, 2016 authorizing the Dutch authorities to start preparations for the establishment of a seat of the Specialist Chambers and the Specialist Prosecutor’s Office in The Netherlands.[4]

The establishment of the Specialist Chambers and the Specialist Prosecutor’s Office relates back to a report on Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo prepared by the Committee on Legal Affairs of the Parliamentary Assembly of the Council of Europe in December 2010.[5] The Parliamentary Assembly of the Council of Europe approved the report in January 2011, expressing concerns about allegations “that serious crimes had been committed during the conflict in Kosovo, including trafficking in human organs.”[6] Investigations into the allegations began immediately thereafter under the auspices of the European Union Rule of Law Mission in Kosovo (EULEX), which established for this purpose a Special Investigative Task Force (SITF).[7]

The Specialist Chambers consists of judicial chambers and a registry[8] and is staffed with international personnel only; no Kosovo judges or prosecutors will be involved.[9] The Specialist Chambers will be attached to every level of the court system in Kosovo, which means that the Basic Court, the Court of Appeals, the Supreme Court, and the Constitutional Court will each have an additional special chamber which will deal exclusively with criminal proceedings related to the Council of Europe Assembly Report.[10] The Chamber at the Basic Court is composed of three judges and one reserve judge, while the Chambers at the Court of Appeals, the Supreme Court, and the Constitutional Court each have three judges.[11] Judges will be appointed by the head of EULEX and not by the president of Kosovo as in the case of other judicial appointments.[12]

The Specialist Prosecutor’s Office is responsible for the investigation and prosecution of persons responsible for crimes falling under the jurisdiction of the Specialist Chambers,[13] and it is independent from the Specialist Chambers and from other prosecution authorities in Kosovo.[14] The Law provides that the Specialist Prosecutor’s Office will take on the mandate and personnel of the SITF, and the Lead Prosecutor of the SITF will be appointed by the head of EULEX as the Specialist Prosecutor.[15] All other prosecutors and officers of the Specialist Prosecutor’s Office are appointed by the head of EULEX upon the recommendation of the Specialist Prosecutor.[16] The Specialist Prosecutor’s Office has its own police, which have authority equivalent to that of the Kosovo Police under Kosovo law.[17]

The Specialist Chambers has jurisdiction over crimes against humanity and war crimes under international law, as well as crimes under Kosovo law to the extent that they relate to the Council of Europe Assembly Report and its allegations of “grave trans-boundary and international crimes committed during and in the aftermath of the conflict in Kosovo” and which have been the subject of criminal investigation by the SITF.[18] Jurisdiction is limited to crimes that occurred between January 1, 1998 and December 31, 2000[19] and that were either commenced or committed in Kosovo.[20] The Specialist Chambers has jurisdiction over natural persons of Kosovo/Federal Republic of Yugoslavia (FRY) citizenship and any other persons who committed crimes against persons of Kosovo/FRY citizenship.[21] Within their jurisdiction, the Specialist Chambers has primacy over all other courts in Kosovo,[22] and it and the Specialist Prosecutor have the authority to order the transfer of proceedings within their jurisdiction from any other prosecutor or any other court in the territory of Kosovo.[23]

The Specialist Chambers and the Specialist Prosecutor’s Office have certain features that set them apart from other Kosovo judicial institutions. Unlike other Kosovo courts, they have the capacity to enter into arrangements with states, international organizations, and other entities for the purpose of fulfilling their mandate.[24] International treaties entered into between the Specialist Chambers and the Specialist Prosecutor’s Office with another state on judicial cooperation do not have to be ratified by the Assembly of Kosovo, and the Specialist Chambers must only seek the agreement of the Government of Kosovo before entering into such a treaty.[25] The Specialist Chambers, the Registry, and the Specialist Prosecutor’s Office are also authorized to utilize mutual legal assistance agreements that were entered into by Kosovo and other states, or make requests for assistance based on the principle of reciprocity.[26] Further to that, the Specialist Chambers may enter into agreements with other states on the immunity and inviolability of their premises, property, funds, assets, archives, records, and documents,[27] and the servicing of imprisonment sentences in the territory of such states.[28] The jurisdiction of the Specialist Chambers is not limited by any amnesty that may be granted under the Constitution of Kosovo.[29] Judgments of the Specialist Chambers are also not subject to any pardon that may be granted under the Constitution.[30]

The budgets of the Specialist Chambers and the Specialist Prosecutor’s Office will be funded by the European Union rather than from the Kosovo budget.[31] Indeed, the two bodies also operate entirely outside of Kosovo’s public financial management and accountability system. They are not subject to any audit by the Kosovo Auditor and they are also not required to comply with Kosovo legislation on public finance.[32]

Bearing in mind that the Specialist Chambers and the Specialist Prosecutor’s Office are intended to function within the Kosovo justice system, it is striking that the premises, property, papers, and personnel, including counsels, experts, witnesses, and any other persons performing functions for the Specialist Chambers or the Specialist Prosecutor’s Office, enjoy privileges and immunities that are accorded by Kosovo law to the offices and personnel of EULEX.[33] Their premises, property, funds, assets, archives, and records are inviolable and immune from any form of search, confiscation, or other interference by Kosovo authorities.[34] Their archives are their own property and are maintained in a dedicated repository outside Kosovo.[35] All their papers, records, and archives, including those of the Registry, are explicitly not considered to be public documents of Kosovo due to security and privacy considerations and there is no general right of access to them.[36]

In light of the structural elements outlined above, the Specialist Chambers and the Specialist Prosecutor’s Office present an interesting case that may further inform the debate on which criteria should be used to differentiate between internationalized domestic courts and international tribunals with national elements, both of which may be considered “hybrid courts.” Hybrid courts are generally defined as courts of mixed composition and jurisdiction, which include national and international elements. Based on existing models, such as the Special Panels for Serious Crimes in East Timor, the “Regulation 64” Panels in Kosovo under UNMIK, the Extraordinary Chambers in the Courts of Cambodia, and the War Crimes Chamber of Bosnia and Herzegovina, one could distinguish between internationalized domestic courts and international tribunals with national elements, and differing views have been proposed regarding what factors distinguish these two categories of hybrid courts. One approach considers mixed panels composed of both domestic and international judges as the only defining element of hybrid courts.[37] From this perspective, the Specialist Chambers, which is composed of international judges only, would be a pure international tribunal. Another approach looks at the legal foundations of the institution, i.e., whether it is founded on international law or domestic legislation.[38]According to this view, the Specialist Chambers would be an internationalized domestic court, as it is established by Kosovo law and operates within the Kosovo justice system. Thus, as a special court which is established by Kosovo law but which is operated exclusively by international judges, the Specialist Chambers is a novelty among existing models of hybrid tribunals. In matters of legal form, the Specialist Chambers is a domestic court; in terms of its composition and personnel, however, it is an international tribunal.

About the Author: Robert Muharremi lectures in Human Rights and International Relations at the Rochester Institute of Technology in Kosovo.