In the end of EULEX’s executive mandate: contribution undisputed, expectations not met
On 14 June 2018, European Union Rule of Law Mission (EULEX) finally ended its then mandate and it no longer has competences and executive powers in Kosovo judicial system, which it enjoyed for almost ten years. EULEX used to be the biggest and most expensive civilian mission of this kind established by the European Union (EU) in any country. According to EU Council Decision of 8 June 2018, EULEX will still remain in Kosovo, until 2020, but it will have a new mandate which will include monitoring and advising judiciary, Correctional Service, as well as support to the Specialized Court and to implementation of agreements reached in the dialogue on normalization of relations between Kosovo and Serbia.
EULEX was established late in January 2008, but it officially became operational in Kosovo the same year, on 9 December. EULEX became fully operational in April 2009, when it took over the mandate from the United Nations Mission in Kosovo (UNMIK) in areas of judiciary, police and customs, and prison system. First EULEX judges were deployed in Kosovo in April 2008, whereas in January 2009 they took upon themselves the first case (indictment confirmation session in case Prosecution Office v. Gjelosha Krasniqi). The first verdict was reached by EULEX judges on 12 March 2009 (acquittal in case Prosecution Office v. Florima Ejupi).
Since the beginning of Mission’s operation until June 2004 (when this power was gradually being transferred to local judicial institutions), EULEX had exclusive powers over prosecuting war crimes, as well as other most severe ethnically and politically motivated crimes, such as terrorism, organized crime and high-level corruption. Until initial reduction of EULEX’s mandate judges’ panels in charge of these cases were making decisions in mixed international-local panels, presided over by EULEX judges. This rule was not applied in cases prosecuted before the District Court (later Basic Court) of Mitrovicë/Mitrovica, where, due to political and ethnic tensions, trial panels were exclusively composed of international judges. EULEX prosecutors, on the other hand, even after initial reduction of EULEX’s mandate in 2014, and primarily until the end of the Mission, were exclusively in charge of prosecuting these crimes, meaning that a very small number of indictments in most difficult cases was raised by local prosecutors.
Since the beginning of the mandate until 14 June 2018, according to EULEX, judges of this Mission reached 648 verdicts, 479 of which in criminal cases such as corruption, organized crime, money laundering, war crimes and human trafficking. During the executive mandate within Kosovo judiciary, according to documentation Kosovo Humanitarian Law Center (Kosovo HLC) has at its disposal, EULEX prosecutors raised 11 verdicts, upon charges for war crimes in Kosovo, against 41 Albanians, 11 indictments against 12 Serbs, and 1 indictment against 1 Roma. In addition to deciding in these cases, both in first instance and second instance proceedings (as well as third instance proceedings, if foreseen by law in accordance with extraordinary remedies), judges of this Mission were deciding also in cases upon charges raised earlier by UNMIK prosecutors, where only UNMIK judges were deciding before EULEX Mission was established
Kosovo HLC systematically and continually monitored all trials for most severe crimes in which EULEX was in charge, regularly compiling annual reports with analysis on how proceedings in these cases were conducted before court and to what extent international standards were complied with in these. Impact of EULEX on Kosovo judiciary will make up for another main topics as a focus of the next annual (2018) report by Kosovo HLC. Overall assessment however, could already now be that this Mission provided significant contribution to strengthening the efficacy of judicial system in Kosovo, both with respect to investigating most severe crimes and with respect to prosecuting them. This assessment particularly stands for initial years of EULEX’s mandate in Kosovo, when the Mission was characterized by transparency and willingness to cooperate with all segments of the society, in particular with non- governmental sector, and application of some internationally recognized standards which were not foreseen by criminal codes applied in Kosovo.
EULEX prosecutors and judges also showed professionalism, in most cases, in prosecuting war crimes, and most severe crimes they were in charge of. This served as an example to local judges and prosecutors and it represents an undeniable contribution. Whether because lack of willingness among Kosovo society to widely support prosecution of war crimes for which former members of KLA were suspected or indicted, who held important commanding posts during the armed conflict in Kosovo, or because of lack of willingness on the part of EULEX to fully insist on solving these cases, an impression remains that the European Mission has not taken a major step in ascertaining accountability for these crimes. One should point out that EULEX was also challenged by high sense of impunity for these crimes Kosovo society is facing. Because of such a sense, number of witnesses willing to testify on war crimes was extremely low, and not seldomly during main hearing witnesses would withdraw accusing testimonies given in earlier stages of proceedings, which would destroy enormous effort and energy invested by EULEX prosecutors in solving these cases.
Nevertheless, Kosovo HLC considers that, in addition to positive influence on Kosovo judiciary and rule of law system as a whole, EULEX failed to meet expectations from the beginning of its mandate, both in terms of number of prosecuted cased and in terms of witness protection, which lead to establishment of Specialized Prosecution Office seated in the Hague, which will be in charge of investigating crimes committed in period from 1 January 1998 to late December 2000.