The Rule Of Law In Kosovo: Mission Impossible? – Analysis

The EU’s rule-of-law mission in Kosovo is failing to prosecute key figures accused of corruption and organised crime because of political interference and fears that putting too much pressure on Pristina could spark inter-ethnic violence, say campaigners.

By Selvije Bajrami

EULEX, the European Union’s rule-of-law mission in Kosovo, is unique in both scale and ambition; greater in size than all other EU operations put together.

Mandated to not only assist Kosovo’s own legal institutions in the fair and proper application of the law, EULEX has the power – on paper – to also independently investigate and prosecute serious cases of organised crime, corruption and war crimes.

Set up in 2008, when Pristina declared independence from Belgrade, EULEX promised amid great fanfare to help stamp out corruption and ‘catch the big fish’. EU member states finance EULEX to the tune of €165 million each year to do so.

Since then, EULEX, which employs around 3,000 staff, has attracted much criticism, particularly for failing to strengthen Kosovo’s own legal system, tackle high-level organised crime and corruption and for the cost of running the organisation.

Avni Zogiani is director and founder of the Çohu NGO; a campaign group calling for tougher action on crime and corruption in Kosovo. He believes that Brussels now regards political stability in Kosovo as a higher priority than the rule of law.

“Corruption is getting worse and this trend will continue because we need to maintain this political stability that the international community needs because it has no definitive solution for the political status [of the state] and the issue of the Serb community… and is doing this at the expense of the development of the country,” he says.

Belgrade and Pristina are preparing for a fresh round of EU-brokered talks that could lead to Serbia informally recognising Kosovo as an independent state but, in the meantime, Kosovan Albanians and Serbs remain, on the whole, deeply divided following the war of 1999.

Serbs living in the north of the country do not recognise Kosovo’s independence and the situation remains highly volatile. Only this summer, violence flared up between Serbs and Kosovan police at checkpoints in northern Kosovo after Hashim Thaci, the Kosovan prime minster, sent special police units to the borders.

One Kosovan Albanian police officer was shot dead by a sniper. Seven Kosovan Serbs are suspected as being behind the shooting; all remain at large.

Zogiani believes EULEX is effectively hamstrung in its attempts to combat high-level corruption and organised crime because the Pristina political elite prevent it from doing its work.

“Instead of an independent judiciary they [EULEX] found a controlled and directed judiciary. Instead of a supportive legislature, they faced a parliament that did everything to complicate the fight against corruption… EULEX’s main handicap is the fact that the highest ranks of government are involved in corruption,” he says.

He is far from alone in believing the EU’s mission in Kosovo is fighting a losing battle.

“EULEX’s mandate is to improve the capacity of the Kosovo institutions to deal with the worst crimes and criminals… if you compare the cost with their results, you must conclude that the €165 million a year, even if well spent, is wasted,” says Andrea Capussela, head of economic and fiscal affairs at the International Civilian Office (ICO) in Kosovo until April this year.

“Has the judiciary improved? No. Has corruption declined? On the contrary, it grew.”

Major Players

Chief among the criticisms directed at EULEX are claims it has failed to prosecute major players and that it cannot properly protect the few witnesses who are willing to testify.

The attempted prosecution of Fatmir Limaj, the former Kosovo Liberation Army commander turned politician, is perhaps the most high-profile case on EULEX’s public books.

Limaj has been indicted on suspicion of committing war crimes against both ethnic Serbs and Albanians regarded as ‘disloyal’ at a detention centre in Klecke/Klecka in 1999, during his time as a KLA fighter. He has also been questioned in connection with corruption charges. Limaj strongly denies all the charges.

EULEX was unable to arrest Limaj until recently, when the Constitutional Court of Kosovo finally clarified whether MPs had immunity to prosecution while in office, declaring they did not.

The mission’s actions against Limaj provoked demonstrations in Kosovo, as many citizens regard him as a war hero and freedom fighter rather than a suspected criminal.

Limaj was put under house arrest at the end of September for a month, but during this time the key protected witness in his case, Agim Zogaj, referred to as ‘Witness X’, was found dead in Germany, apparently after committing suicide.

Several of Zogaj’s testimonial letters have been published since his suicide that speak of a campaign of intimidation to stop him from talking about war crimes, including an alleged attempt by “Limaj’s people” to assassinate him on three occasions.

Against all odds, Zogaj agreed to become a witness in a key EULEX trial – in exchange, EULEX promised to protect him. This is, at least, how Zogaj’s family remember it.

Zogaj’s family say that EULEX failed to protect him.

“EULEX came to my house and took my son away – they told me he would be protected, instead he died on their watch – I hold EULEX responsible for my son’s death,” says Idriz Zogaj, the father of ‘Witness X’.

After Zogaj’s death, EULEX issued a statement saying it regretted the loss of his life.

In conjunction with a local prosecutor, EULEX’s high-profile arrest in July 2010 of Hashim Rexhepi, the former governor of the Kosova Central Bank, on charges of corruption, abuse of office, bribery money laundering and tax evasion drew sharp criticism from some observers, including Capussela who worked closely with him during his time at the ICO.

“By imprisoning the governor, EULEX removed from the stage a known enemy of the political elite. His detention was preceded by a media campaign against him. This campaign was based on corruption accusations made by EULEX. Later those accusations were dismissed. Rexhepi was dismissed from his post, in violation of the law,” says Capussela.

Rexhepi was kept in custody for four months. However, a year and a half since his arrest, all other charges apart from abuse of office have been dropped but the case is dragging on.

He himself denies all the charges, insisting he has been the victim of a smear campaign.

“If one is arrested based on anonymous tips, without even one fact about law violation, and what’s more when investigation units and the prosecution have not engaged in any verification of doubts, how can it be otherwise interpreted but as inspired by high political circles,” says Rexhepi.

When asked to comment on the case previously, EULEX insists in cannot make statements about on-going investigations but stresses it is pursuing all cases in accordance with the law.

Corruption ‘Top Priority’

According to EULEX figures, 202 verdicts were handed down in serious criminal cases up until mid-October 2011. Fourteen of these related to organised crime and 30 to major corruption cases. The rest were murder, people and drugs trafficking trials.

Krenar Gashi, director of the Kosovar Institute for Policy Research and Development (KIPRED) think tank, is unimpressed.

“When you measure these verdicts against the number of judges, according to EULEX numbers and research by KIPRED, it appears that a EULEX judge has on average resolved 0.17 cases a year of corruption and 0.07 cases of organised crime – this is way below what is expected of them,” he says.

Brussels has also expressed concern about high-level criminal activity and the rule of law in Kosovo. The European Commission’s progress report on Kosovo published in October this year read: “Overall, Kosovo’s capacities to fight organised crime are still at an early stage. Serious efforts are needed to address these challenges.”

Johannes Van Vreeswijk, chief prosecutor at EULEX until summer 2010, acknowledges progress has been slow-going.

“I am a bit disappointed… my expectations were that it [prosecutions] could have been done faster. This is simply not as easy as I thought it would be… the pace of everything was slower than I would have liked to see,” he says.

EULEX insists corruption and organised crime remain top priority, and underlines the mission is working in a country that has only just begun to create rule of law institutions during the past decade, following the split from what was left of the former Yugoslav federation.

Nicholas Hawton, the mission’s spokesman, denies that the mission’s work has been subject to direct political interference, but stresses: “EULEX does not work in a vacuum and is aware of prevailing political circumstances and the difficulties that those circumstances sometimes play when trying to implement the rule of law.”

Capussela is more direct: “I believe that the problem resides in Pristina, in the leadership of EULEX. What I would blame Brussels for is not acknowledging that EULEX is not working, and not remedying the problem; perhaps they are doing something, moving prudently and without publicity, but no results are visible yet.”

Logistical Problems

The EU’s mission has also suffered from a range of logistical problems, including a high staff turnover, poor local knowledge among internationals and too few translators.

Troy Wilkinson, an IT forensic investigator for EULEX until December 2010, says: “After a person leaves the mission, his position could remain vacant for up to six months or more. There is no handover of experience or knowledge. This is the same for heads of units, chief of sections and even higher positions.”

He also claims that most internationals stay for one year only: “EULEX cases are complicated and require years of research, investigation and prosecution. By the time a case is tried in court, more than three different investigators worked on the case and there is no first-hand information about anything that happened.”

Van Vreeswijk concedes there were “never enough translators” but says that while there has been a high turnover of investigators “they know what has been done by their predecessors in order to resume the work”.

Ismet Kabashi, chief public prosecutor for Kosovo, complains that communications between his office and EULEX had been poor until he wrote a letter in April this year insisting he be kept informed on progress with investigations and prosecutions.

Kabashi is also dismissive of claims that the work of EULEX has been frustrated by politics on the ground – such as interference from the Pristina elite – insisting the mission is subject to political influence from the EU.

“Maybe EULEX prosecutors cannot be influenced by Kosovar politics but, of course, they have their biases towards Brussels politics, maybe to a greater extent than we [Kosovan prosecutors] have from local politics here,” he says, although he declined to give any examples.

EULEX Exit Strategy?

Many in Kosovo resent the presence of EULEX, claiming their staff are overpaid to do a job that Kosovo’s own institutions are able to do.

Kabashi is one of them. “I think that the local prosecutors are ready to carry out investigations for which EULEX has the executive mandate, except cases of war crimes, which must be closed as soon as possible by EULEX,” he says.

In a recent report, KIPRED urged EULEX to slowly reduce its executive mandate to focus on monitoring and advising, in order to “increase the level of direct accountability of Kosovo’s institutions”.

However, Gashi, the director of KIPRED, believes the EU mission will have to strengthen its executive, prosecutorial powers in the short term in order to complete top-level prosecutions and leave the country in the near future.

“In Kosova, there are many unresolved cases and in a report we have issued we have asked that EULEX increase the executive mandate [in the short term], finish the cases it is handling and leave Kosova within a two-year period,” he says.

But most analysts believe it will be much more than two years before EULEX can withdraw from Kosovo in the knowledge its rule of law institutions are up to the task.

Zogiani from Çohu is very clear that Kosovo is far from able to take on the rule of law, describing the Kosovan judiciary as “a practical mockery of a justice system”.

He claims the stipulation that only judges with a certain number of years’ experience behind them can serve means they “are incompetent and vulnerable to blackmailing because of their involvement in political prosecutions during the Milosevic [the former Serb president of what was left of the Yugoslav federation in 1999] era”.

Sylvie Kormoss, a Belgian federal government internal affairs adviser who formerly worked for EULEX’s human rights department in Pristina, says: “For EULEX to achieve its aims… it should stay there for another five or ten years.”

While refusing to comment on how much longer EULEX will need to stay in Kosovo, the former prosecutor Van Vreeswijk notes that it usually takes ten years to develop a fully-functioning ‘home-grown’ legal system.

Maja Kocijancic, spokeswoman for Catherine Ashton, the EU’s foreign minister, also stresses that EULEX’s mission is a long-term one and it needs much more time to complete its work, both in terms of prosecutions and in supporting Kosovan institutions such as the judiciary, police and customs.

“EULEX has undertaken challenging tasks and they cannot be carried out overnight. They are building a strong case of tangible results… I understand that Kosovar society had high expectations from the mission and with such high expectations it is very difficult to make people happy,” she says.

Capusella, formerly of the ICO, says that no one will have any faith in EULEX until it really does start to catch the ‘big fish’.

“Kosovo has very little experience and a very weak culture of accountability; people who commit crimes tend not to pay for it. So, the executive powers [of EULEX] are useful not only to catch the worst criminals but also as an example of accountability… things will start to change when criminal after criminal is caught, sentenced and sent to jail,” he says.

One former international who no longer works in Kosovo says, speaking on condition of anonymity: “If you really want to tackle organised crime, then you have to arrest political leaders, and members of parliament, maybe ministers.”

All Kosovans will be watching how the definitive lifting of immunity to prosecution for politicians will play out in the near future, but it seems unlikely that EULEX staff will be packing up and quitting Kosovo any time soon.

Selvije Bajrami is a Pristina-based journalist. This article was produced as part of the Balkan Fellowship for Journalistic Excellence, an initiative of the Robert Bosch Stiftung and ERSTE Foundation, in cooperation with the Balkan Investigative Reporting Network.