Summary of Complaints received by the Ombudsperson’s Office that led to a Report
2024
CASE-2024-02/03
Complaint: Counsel on behalf of the four applicants submitted a further request for reconsideration of the Ombudsperson’s Decision on the case OMB-C-2024-02/01 and OMB- C-2024-02/02. In their submission the complainants requested the Ombudsperson to examine the issue of a lack good governance on the part of the Registrar in the amendment of the 2020 Legal Aid Regulations and the adoption of the amended Legal Aid Regulations 2024.The complainants alleged that the lack of consultation and notice prior to the adoption of the 2024 Legal Aid Regulations constitutes poor governance. They argued that the Registrar failed to consult with the Independent Representative Body of Specialist Counsel (IRBSC). The complainants further submitted that they were obvious stakeholders in the amendment process and, as such, ought to have been part of the consultation process.
In addition, the complainants argued that the Registrar failed in her duty to disclose to the complainants the record of the amendment procedure, and pointed to Article 3(2) of the Legal Aid Regulations and Article 41 of the Constitution of Kosovo (the Constitution) in support of their argument.
Assessment: The Ombudsperson, in his assessment, re-examined Article 3(1) of the Legal Aid Regulations which provides that the Registrar may amend the regulations proprio motu or upon amendment proposals, and that she may consult with the IRBSC regarding amendment proposals.
The Ombudsperson concluded that not only is there no legal obligation for the Registrar to consult with the IRBSC in cases of proprio motu amendments to the Legal Aid Regulations, but that there is no reference to any other stakeholders being consulted.
The Ombudsperson further concluded that any submissions made by the complainants in respect of lack of consultation with the IRSBSC would not be considered, as the complainants could not be seen as representatives of the IRBSC, and thus lack locus standi. In addition, regarding the complainants claim to being “obvious stakeholders”, the Ombudsperson noted that none of the four complainants or their Counsel had applied for Legal Aid to the KSC until some months after the adoption of the 2024 Regulations.
In relation to the alleged failure or refusal of the Registrar to disclose the records of the amendment procedure, the Ombudsperson recalled Art 41(2) of the Constitution which limits the right of access to public documents. In addition, the Ombudsperson noted the provisions of Article 62 of the Law on the Specialist Chambers and Specialist Prosecutor’s Office which states that documents, papers, records and archives of the Specialist Chambers, the Registry and the Specialist Prosecutor’s Office are not considered public documents of Kosovo and that there is no general right of access to these documents, papers, records or archives.
Conclusion: The Ombudsperson rejected the complaint in its entirety.
Note: The Report on this complaint is accessible on the KSC website.
CASE-2024-02/02
Complaint: Counsel on behalf of the four complainants submitted a request for reconsideration of the Ombudsperson’s original Decision in the case OMB-C-2024-02. In their submission they alleged that the Ombudsperson had failed to consider Rule 6(4) of the Rules of Procedure for the Specialist Chamber of the Constitutional Court (RPSCCC), which would allow the Specialist Chamber of the Constitutional Court (SCCC), in limited circumstances, to extend the 2-month time limit for the Ombudsperson to refer the issue of Constitutionality of the Legal Aid Regulations to the Specialist Chambers of the Constitutional Court (SCCC).
The Ombudsperson was thus requested to reconsider his assessment in his previous decision, and to refer the question of the Constitutionality of KSC-BD-25/Rev1 to the SCCC.
Assessment: The Ombudsperson referenced Article 113(2) of the Constitution which authorises the Ombudsperson to make referrals to the SCCC, which does not include a referral based solely on a request by an individual. Any referral to the SCCC by the Ombudsperson must be based on his assessment that the impugned law is incompatible with the Constitution. To do otherwise would be in direct contradiction with Article 113 of the Constitution. The Ombudsperson did, in fact, consider Rule 6(4), but he found no valid reason to ask for an extension of the 2-month time limit to make a referral to the SCCC. In considering the requirement to provide adequate legal aid and whether the 2024 Legal Aid Regulations might be unconstitutional, the Ombudsperson concluded that the adequacy of the 2024 Regulations can only be reviewed on a case by case basis. In this regard, he noted that the complainants had not alleged that any specific decision had been taken pursuant to the 2024 Legal Aid Regulations. Furthermore, he observed that the 2024 Legal Aid Regulations provide for a mechanism of review by a competent panel of any decision made on Legal Aid. The Ombudsperson concluded that the right of the accused to an effective remedy is a constituent part of these regulations and that it is incumbent on Counsel to engage with them. He recalled also that all four complainants were before the criminal Chambers, and as such, it falls to the criminal Chambers, in the first instance, to protect the rights of the accused.
Thus, the Ombudsperson rejected the assertion that he failed to consider Rule 6(4) in his assessment and rejected the complainants’ assertion that it was erroneous of him to not recognise as valid a referral of the 2024 Legal Aid Regulations.
Conclusion: The Ombudsperson rejected the request for reconsideration in its entirety.
Note: The Report on this complaint is accessible on the KSC website.
CASE-2024-02/01
Complaint: The four complainants are being held in detention in the Detention Facilities of the Kosovo Specialist Chambers since their respective arrests. They alleged that the Registrar has violated their right to a fair trial, and more specifically their right to an effective defence.
Counsel on behalf of the complainants alleged that the adoption by the Registrar of revised Legal Aid Regulations (KSC-BD-25/Rev1) in February of 2024 violated the fundamental rights of their clients. They alleged that the changes in the revised Legal Aid Regulations in respect of funding allocated to crimes related to the obstruction of justice, result in a violation of the rights afforded to the accused pursuant to Articles 30 and 31 of the Constitution, and Article 6(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. They complained that the revised Legal Aid regime will result in insufficient funds being allocated to provide the accused with effective representation, thus violating their fundamental rights.
In addition, Counsel on behalf of the complainants requested the Ombudsperson to exercise his powers pursuant to Article 49(5) of the Law No.05/L-053 and to refer the question of the Constitutional validity of the 2024 Legal Aid Regulations to the Specialist Chamber of the Constitutional Court.
Counsel on behalf of the complainants further complained, in submission to the Ombudsperson, about the lack of mechanisms for interim funding for Counsel of choice in advance of Legal Aid funding being allocated. Counsel also asked the Ombudsperson to consider the scope for the withdrawal of Counsel in the absence of funding.
Assessment: In accordance with Rule 26 of the Rules of Procedure and Evidence for the Specialist Chamber of the Constitutional Court, any referrals by the Ombudsperson of the Specialist Chambers or the Ombudsperson of the Republic of Kosovo shall be made within two months from the impugned law having entered into force. The complaint and request for referral to the Specialist Chambers of the Constitutional Court was registered with the Ombudsperson after this time limit had expired. Therefore, the Ombudsperson was unable to consider any request by the complainants to refer the Revised Legal Aid Regulations to the Constitutional Court.
Regarding the alleged violation of the fundamental rights of the accused as a result of the adoption by the Registry of certain amendments to the Legal Aid Regulations, the Ombudsperson concluded that proceedings against all four complainants are ongoing and it falls, in the first place, to the criminal Chambers to assess whether there is any merit to the alleged violations of their fundamental rights as a consequence of the adoption of the 2024 Regulations , and whether this can or should be remedied in the course of proceedings. Therefore, the Ombudsperson rejected this element of the complaint pursuant to Rule 29(1) and Rule 29(3)(a) of the Rules of Procedure and Evidence before the Kosovo Specialist Chambers (RPE) as he is prohibited from interfering with cases or other proceedings before the Specialist Chambers.
Moreover, in regards to the specific complaints made by one Counsel regarding the mechanisms for interim funding and withdrawal of counsel in absence of remuneration, the Ombudsperson noted that they were complaints of an administrative nature and that there was no assertion made that these issues have resulted in a violation of the accused’s fundamental rights. Therefore, the Ombudsperson rejected this element of the complaint pursuant to Rule 29(3)(b) of the RPE.
Conclusion: The complaint and request for referral to the Specialist Chamber of the Constitutional Court were rejected in their entirety.
Note: The Report on this complaint is accessible on the KSC website.
2022
CASE-2022-04
Complaint: The complainant alleged that during the course of being interviewed by staff of the Specialist Prosecutor’s Office (‘SPO’), one of the interviewers used the phrase “Kosovo I Metohija” when referring to Kosovo. The complainant stated that the use of this phrase is offensive and repugnant, as it is the term used by Serbia when referring to Kosovo in a pejorative manner.
He further submitted that when he raised his concerns about the use of the term at the end of the interview, the SPO staff members present did not appear to realise and/or care what they had said.
The Ombudsperson sought the views of the Specialist Prosecutor on the complaint and requested specific information regarding the use of this phrase during the interview with the complainant and more generally as to whether this was common practice within the SPO.
Assessment: The Ombudsperson is satisfied that the phrase was used in error by the SPO during the interview with the complainant. The Ombudsperson acknowledged the use of this phrase was undoubtedly offensive to the complainant. However, the Ombudsperson found that the use of the phrase did not meet the threshold required to constitute a violation of any fundamental right.
Furthermore, the Ombudsperson was satisfied from the submissions received from the Specialist Prosecutor that appropriate measures have been taken by the SPO to ensure that such an error will not occur in the future.
Conclusion: The complaint was rejected.
Note: The Report on this complaint is accessible on the KSC website.
Case-2022-02
Complaint: The complainants, four individuals indicted before the Kosovo Specialist Chambers and being held in detention since their arrest, alleged that the Specialist Prosecutor’s Office had violated their right to a fair trial and referred to specific actions of the SPO which they believe constitute violations of these rights.
The complainants alleged that the SPO had not complied with the disclosure obligations placed on it by the Law and by the Rules of Procedure and Evidence. They also submitted that the documentation that they had received from the SPO had been subject to excessive redactions.
The complainants also alleged that a number of violations of the Constitution and the Law by the Specialist Chambers had resulted in a violation of their right to an independent, impartial and fair trial as well as their right to an effective remedy.
They alleged violations resulting from the manner in which the Specialist Chambers had applied the law in a case before the Specialist Chamber of the Constitutional Court, the withdrawal of a Judge from a Panel and dismissal of submissions regarding interim release, amongst others. The complainants also submitted arguments regarding the jurisdiction of the Ombudsperson.
Furthermore, the complainants alleged that the Specialist Chambers are not subject to sufficient oversight, specifically because the Court is not accountable to the Kosovo Judicial Council.
In addition, the complainants alleged that the KSC is not complying with Article 3(1) of the Law No.05/L-053.
The complainants further alleged that they had been subjected to excessive prolongation of proceedings before the Specialist Chambers.
The complainants also submitted that they had suffered a violation of their right to a fair trial as result of the Specialist Chambers not issuing a decision regarding the length of the trial.
Finally, they allege that the KSC operates in violation of Article 3(6) of the Law No.05/L-053.
Assessment: The Ombudsperson noted that both of the complaints made by the complainants against the SPO had already been the subject of proceedings before the Specialist Chambers.
The Ombudsperson is prohibited from intervening in any case or other legal proceeding before the Specialist Chambers. Thus, since both matters were part of legal proceedings, in accordance with Rule 29(1) and 29(3)(a) of the Rules of Procedure and Evidence, the Ombudsperson lacked jurisdiction to examine the complaint.
Moreover, certain elements of the complainant’s submissions against the Specialist Chambers were also the subject of proceedings before the Specialist Chambers and were rejected for lack of jurisdiction.
Turning to the remaining elements of the complaint, the Ombudsperson decided that none of them had succeeded in demonstrating a violation of the complainants’ right to a fair trial or to an effective remedy. Therefore, pursuant to rule 29(3)b of the Rules of Procedure and Evidence, those elements of the complaint against the Specialist Chambers were also rejected.
Conclusion: The complaint, in its entirety, was rejected.
Note: The full report on this complaint is accessible on the KSC website.
2021
Case-2021-05
Complaint: The complainant, a former employee of the SPO, alleged that the disclosure of his name in open court and the disclosure of his name to the Defence resulted in a violation of his right to private and professional life, his right to life and the right to life of his family by the SPO.
Assessment: Regarding the mention of the name of the complainant during the public proceedings, the Ombudsperson was of the view that this related to the conduct of legal proceedings before the Court. The Ombudsperson, is prohibited from intervening in any case or other legal proceeding before the Specialist Chambers. Thus, in accordance with Rule 29(1) and 29(3)(a) of the Rules of Procedure and Evidence, the Ombudsperson lacked jurisdiction to examine this strand of the complaint.
Regarding the disclosure of the name and the position of the complainant in documents transmitted to the Defence, the Ombudsperson found that the Complainant had no reasonable expectation that his identity would be protected and that as such, the disclosure of his name in documents transmitted to the Defence did not violate his right to private life, as protected by Article 36 of the Constitution, Article 8 of the ECHR and Article 17 of the ICCPR.
Besides, the Ombudsperson found that the complainant failed to demonstrate that the disclosure of his name to the Defence by the SPO resulted in a real and immediate risk to his life and that of his family, and that as such, it had not resulted in a violation of his right to life, as protected by Article 25 of the Constitution, Article 2 of the ECHR and Article 6 of the ICCPR.
Finally, the Ombudsperson found that that the complainant failed to demonstrate that the disclosure of his name to the Defence by the SPO compromised his opportunities to find future employment, since the disclosure was done on a confidential basis, and that as such it had not resulted in a violation of his right to private and professional life, as protected by Article 36 of the Constitution, Article 8 of the ECHR and Article 17 of the ICCPR.
Conclusion: The Ombudsperson declared the first strand of the complaint inadmissible and found that the SPO did not violate the fundamental rights of the complainant in disclosing the name of the complainant to the Defence as it was done so on a confidential basis.
Note: The full report on this complaint is accessible on the KSC website.
Case-2021-02
The complainant had made a complaint against the Specialist Prosecutor’s Office (I) and against the Specialist Chambers (II)
I. Complaint against the Specialist Prosecutor’s Office: The complainant alleged that during the investigations conducted against him, the Specialist Prosecutor’s Office had violated his right to a fair trial, and referred to specific acts of investigation that had occurred more than 6 months prior to the complaint.
Moreover, the Complainant alleged that the Specialist Prosecutor’s Office had failed to answer to his request to terminate the investigation.
Finally, the complainant stated that the Ombudsperson was his only remaining remedy. However, subsequent to lodging the Complaint with the Ombudsperson, the complainant had also filed an application with the Specialist Chambers to have the investigation against him terminated.
Assessment: Regarding the complaint against the Specialist Prosecutor’s Office, a complaint must be submitted to the Ombudsperson within six months of the alleged occurrence, unless good cause to consider the complaint has been shown. In the absence of good cause, the Ombudsperson considered that, in accordance with Rule 29(3)(e) of the Rules of Procedure and Evidence, this part of the complaint was inadmissible.
Regarding the request of the complainant to the Specialist Prosecutor’s Office, it was established by the Ombudsperson that the Specialist Prosecutor’s Office had, in fact, responded to that request. Thus, in accordance with Rule 29(3)(b) of the Rules of Procedure and Evidence, the complainant had failed to demonstrate a violation of human rights by the Specialist Prosecutor’s Office.
Finally, the Ombudsperson, is prohibited from intervening in any case or other legal proceeding before the Specialist Chambers. Thus, since an application had been filed by the complainant with the Specialist Chambers seeking the termination of the investigation during the assessment of the complaint by the Ombudsperson, in accordance with Rule 29(1) and 29(3)(a) of the Rules of Procedure and Evidence, the Ombudsperson lacked jurisdiction to examine the complaint.
Conclusion: The complaint against the Specialist Prosecutor’s Office was rejected.
II. Complaint against the Specialist Chambers: The complainant alleged that his name had been mentioned in statement of facts regarding his specific actions, without redaction in the public redacted version of a decision of the Pre-Trial Judge, which violates his presumption of innocence and his right to have a matter determined by an independent and impartial court of law.
Assessment: The Ombudsperson, is prohibited from intervening in any case or other legal proceeding before the Specialist Chambers. Thus, in accordance with Rule 29(1) and 29(3)(a) of the Rules of Procedure and Evidence, the Ombudsperson lacked jurisdiction to examine the complaint.
Conclusion: The complaint against the Specialist Chambers was rejected.
Note: The full report on this complaint is accessible on the KSC website.
2020
Case-2020-05
Complaint: The complainant, an Albanian national, alleged that the condition of employment with the Specialist Prosecutor’s Office to be a citizen of an EU Member or a Contributing Third State, violated his right of non-discrimination, and that the Registrar exceeded her powers by creating arbitrarily this nationality requirement, for it is not a requirement in any of the legal acts that regulate recruitment and selection procedure.
Assessment: the nationality requirement for employment with the Specialist Prosecutor’s Office is in accordance with the law, is objective and justified and furthermore constitutional.
Moreover, since the recruitment and selection procedures apply equally to all vacancies, there is no violation of Article 8 of the ECHR.
Furthermore, since the situation of an applicant without EU or Contributing Third State citizenship is not comparable to the situation of an applicant who holds such citizenship, no discrimination has occurred and both Articles 14 of the ECHR and Article 1(1) of Protocol No. 12 have not been violated. Additionally, there is no violation of Article 24, 36 and 49 of the Constitution.
Conclusion: The recruitment and selection procedures, which the Registrar is obliged to apply, comply with international human rights law standards, the Registrar has not exceeded her power in implementing the nationality requirement, the recruitment and selection procedures are lawful, obligatory and compatible with the Constitution and there has been no unequal treatment of the complainant.
Note: The full report on this complaint is accessible on the KSC website.