KOSOVO

NATIONAL INTEGRITY SYSTEM (NIS) ASSESSMENT
INDEPENDENCE (LAW)
SCORE 2011 100 2015 75
To what extent is the judiciary independent by
law?
The Constitution and laws guarantee to a large extent that
the judicial system is independent. Recently certain provisions
of the law have been contested for giving excessive
power to the parliament in electing members of the KJC. The
Constitution requires judges 50 and prosecutors 51 to be independent
and impartial in exercising their functions. 52 Judges
are appointed for life and are restricted from joining any political
activity or party. 53 It is the role of the KJC to preserve such
judicial independence. Its final decision to appoint or remove
a judge may be contested by the president of Kosovo only
if there is violation of procedure.
By law, the KJC is an independent institution responsible
for recruiting and appointing judges. 54 Its role is also to initiate
disciplinary measures and transfer judges in addition to
conducting judicial inspections and administering courts. 55
The Council consists of 13 members of professional background
in justice, elected for five years. The Constitution
states that five members of KJC must be appointed directly
by the courts and the remaining eight members by the parliament.
56 The majority rule by the parliament indicates that the
KJC is not fully independent. This goes against the position
of the Venice Commission which holds that courts should
have the majority say in the judicial council. 57
The KJC’s political dependence was not seen as an issue
until late August of 2014 when the mandate of three additional
Council members expired. 58 Since then, the KJC does
not have a quorum to make important decisions (e.g. recruit
new judges and staff). In the meantime, the parliament did
not show any initiative to appoint a full Council. They lack
Rules of Procedure to elect new members of the Council. 59
To make any legal change in line with the principles of the
Venice Commission would be difficult to initiate in the near
future since it would require two thirds (2/3) of the vote of the
parliament to change the Constitution.
Judges are appointed, reappointed and dismissed by the
president of Kosovo upon the proposal of the KJC. 60 The
KJC makes proposals based on an open process and the
merits of candidates taking into account both gender equality
and ethnic composition. 61 The Law on Courts requires
that candidates meet the following criteria for eligibility: be
a citizen of Kosovo and at least 25 years old, have a valid
law degree, pass the bar and judgeship exam, be of high
professional reputation and integrity, have a clean criminal
record, least three years of legal experience, and pass the
evaluation process. 62
An important provision on training of judges has changed
in the new law. Now it is required that judges during initial
training are not assigned to any case. 63 Appointment will ultimately
depend on the evaluation following the results of the
initial training. In addition, in the new law, extra qualifications
in terms of legal experience are less demanding than they
were in the past, depending on the court layer and department.
In the previous law, 10 years of legal experience were
required to serve as a judge in the Court of Appeals whereas
15 years of legal experience as a judge in the Supreme
Court. 64 Today almost a half of that is required – five years
for the judge of the Court of Appeals and eight years for the
judge of the Supreme Court. 65
The initial mandate for a newly appointed judge is three
years and once reappointed he/she will preside over court
proceedings until retirement. 66 So far, 88 judges have been
given a permanent mandate. 67 In a sense, job security is not
an issue if the reappointment process is successfully completed,
a process that requires a rigorous entry exam and
additional training activities. 68 Hence, there are no threats
of arbitrary termination of a contract. A judge can only be
removed if convicted of a serious crime or neglect of duty. 69
INDEPENDENCE (PRACTICE)
SCORE 2011 25 2015 25
To what extent does the judiciary operate
without interference from the government or
other actors?
In the last four years, the judicial system has suffered from
government interference. This is expected to slightly improve
according to the new laws adopted in June 2015. So far,
the budget has been under complete control of the government.
In other words, the government has had the ultimate
authority to decide how much the KJC can spend each year
without being seriously contested by the parliament. Besides
its control over the budget, according to the KJC, the government
has gone as far as making transactions from the
KJC account without any approval or informing the Council. 70
66