It was approved hastily and under pressure, but Kosovo’s President, Justina Shiroka Pula, is now being asked by the initiator of the amendment to the Law on the Kosovo Specialist Chambers in The Hague to return it to the Assembly for review.
The Democratic Party of Kosovo (PDK) said it has submitted this request to the President so that the review can complete certain provisions and strengthen the legal certainty of the law, “in the service of the state interest and the full guarantee of the constitutional rights of our fighters who are being tried before the Specialist Chambers.”
“The review aims at a final professional verification and at addressing the elements that could hinder its implementation. The request is for a return to the Assembly, not to the Government, or for starting the work from scratch,” the PDK said in a media statement. According to the largest opposition party, the review should serve to finalize the law and bring it into force, and experts were called on to contribute to this process.
The PDK said it expects the law to be approved again in four weeks. Radio Free Europe asked the Presidency and the Assembly whether Shiroka Pula has sent or will send the law to the Assembly, but has not yet received a reply. The President has until tomorrow, 23 October, to either promulgate the law or return it to the Assembly. The law, approved in first reading on 5 October and in final reading on the evening of 6 October, was drafted and sponsored by the main opposition party, the Democratic Party of Kosovo, and supported by another opposition party, the Alliance, while thousands of citizens protested in front of the Assembly building demanding that it be approved.
The Self-Determination Movement (Vetëvendosje) of Prime Minister Albin Kurti offered support for the law, although the party in power later expressed skepticism that it would produce the expected effects. The law, which was also linked to the issue of electing the president, was voted on after citizens protested for days against the 16 September verdict that sentenced four former commanders of the Kosovo Liberation Army, who were convicted at first instance of war crimes. The protesters demanded a change to the law and greater support for former president Hashim Thaçi, former speakers of parliament Kadri Veseli and Jakup Krasniqi, and former deputy Rexhep Selimi, who were found guilty by the Specialist Court.
But what happens to the law if it is returned to the Assembly?
Returning the law by the President does not automatically overturn it, nor does it put it back at zero, says Naim Jakaj of the Kosovo Institute for Justice (IKD), speaking to Radio Free Europe. He explains that, based on the Constitution, Shiroka Pula has the right to return the law to the Assembly only once, within the constitutional deadline, and to present the specific reasons. “After this, the law goes back to the Assembly for review,” he says. Based on Article 84 of the Constitution, says Jakaj, Speaker Albulena Haxhiu must forward the law to the responsible parliamentary committee and to the deputies.
So, according to him, the Law on the Specialist Chambers does not return to the ordinary procedure from the beginning, nor is the initiation of the draft law in first reading repeated, along with the entire procedure that was conducted before it, since Jakaj says the Constitution provides a special procedure for a law returned by the President. “The Speaker of the Assembly forwards the law to the responsible rapporteur committee, which examines the reasons for the return and prepares a report for the plenary session within four weeks. Finally, the matter is decided at the session. Here the voting standard is higher than in the ordinary adoption of a law: it is not enough for a majority of the deputies present and voting, but at least 61 votes are required, that is, a majority of all the deputies of the Assembly,” he says.
The mere fact that the President does not promulgate a law does not automatically mean that constitutional or legal violations have been established. However, according to Jakaj, the return of a law by the President is her constitutional competence to ask the Assembly to reconsider the law. “Such a final determination belongs to the Constitutional Court,” Jakaj assesses. In the end, it may be up to the elected representatives of the people to decide whether they want to approve it again if the President returns the law to the Assembly. 61 votes are required for its approval.
However, according to Jakaj, this issue is separate from the question of whether the Assembly must take into account the possible remarks of the President. Under the Constitution, when the head of state returns a law to the Assembly, she must give reasons for this decision. “If the return [of the law by the President] is based, for example, on concerns about the law’s compliance with Kosovo’s international obligations or the legal effects it may produce, deputies must address these issues seriously during the review,” he says.
According to him, the current Rules of Procedure of the Assembly, in the provision regulating the veto or non-promulgation by the President, are much clearer about overriding the veto with 61 votes than about the procedure for changing the text of a returned law. “For this reason, if changes to certain provisions are intended, the procedural way in which they are made must be clarified in the Assembly and by the responsible committee. In any case, a rapid re-vote without addressing the specific reasons for the return would weaken the very meaning of the review that the Constitution requires,” Jakaj assesses.
What does the law provide?
The amendment to the Law on Specialist Chambers, approved on 6 October, does not provide for the abolition of the Kosovo Specialist Court, which has handled several cases concerning war crimes and obstruction of justice. However, it does introduce changes to several key aspects of the court’s functioning. One of the main changes in the approved law – which was sent back by the president – concerns the types of offences the Specialist Court can handle. The changes link its jurisdiction to the allegations of organ trafficking contained in the 2011 report of the Parliamentary Assembly of the Council of Europe, which had led to the creation of the justice mechanism in The Hague. According to the law, the Specialist Court would deal with offences directly related to allegations of the illegal removal, extraction and trafficking of human organs, tissues or cells.
This jurisdiction would also include murders, torture, and cruel and inhuman treatment at the specific detention sites mentioned in the report, where these are directly linked to the alleged organ-harvesting operations. This means the law aims to strip the Specialist Court of jurisdiction to prosecute other war crimes, crimes against humanity or political violence that do not have such a direct link. Likewise, another important change concerns the time period. Under the original law, the Specialist Court handled crimes allegedly committed from January 1998 to December 2000. The law proposed by the PDK, approved on 6 October, limits this period to 1 July 1999 to 31 December 2000. Also, the amendments to the law require that only crimes allegedly committed on the territory of Kosovo be handled, and not those in northern Albania. All cases that do not fall under the Specialist Court’s jurisdiction under the amended law are intended to be transferred to Kosovo.
It also provides that cases currently in proceedings before the Supreme Court be transferred to Kosovo. The amendments also affect the maximum sentence for convicted persons, requiring that it be up to 15 years in prison. Furthermore, persons convicted by the Specialist Court, according to the amendments approved on 6 October, would be made eligible for presidential pardon. However, this conflicts with the current law on pardons, which excludes the right to seek a presidential pardon for certain offences against international law, while the Criminal Code of Kosovo includes war crimes in this category.
The law has been opposed by the European community, which raised concerns about Kosovo’s international obligations and the independence of the Specialist Chambers and the Specialist Prosecutor’s Office. The PDK had previously argued that approving the amendments to the law does not mean that existing judgments are annulled or that convicted persons are released. The Specialist Chambers were established on the basis of a constitutional amendment, a special law and Kosovo’s international commitments. Legal experts have previously warned that changes affecting their mandate could raise constitutional questions and problems in relation to the country’s international obligations. The Specialist Chambers have said they were not consulted on the initiative. Meanwhile, the president of the Specialist Court, Ekaterina Trendafilova, has stated that the court’s mandate is defined on the basis of the exchange of letters, the Constitution of Kosovo and the Law on Specialist Chambers. In a video message, she argued that the Specialist Court guarantees independent and impartial proceedings in the service of, as she put it, justice. Her statement has faced criticism in Kosovo. /REL/