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Kosovo paper says war crimes court requires constitutional amendments

Excerpt from report by Kosovo Albanian privately-owned newspaper Koha Ditore on 30 June 2015. Report by Besnik Krasniqi: "New Option for Setting Up Special Court"

The Kosovo authorities are looking into two options to establish a special court [to try war crimes allegedly committed by the former Kosovo Liberation Army, UCK]. Besides considering the option of resending the constitutional amendments (that were not voted through last week) to the Assembly, the second option provides for the setting up the court without touching on the country's constitution.

This newspaper's sources have said that experts are examining the possibility of using a letter exchange between President Atifete Jahjaga and Baroness Catherine Ashton [former EU high representative for foreign affairs and security policy], which received the status of an international agreement after being ratified in the Kosovo Assembly, as a basis for establishing the special court.

"There are those who argue that the international agreement could serve as a legal basis. It is the same as was the case with the extension of the mandate of three international judges at the Constitutional Court, which was done on the basis of a letter exchange, although in contravention of the constitutional provisions," the source said. "This option is in the game now, although resending the amendments to the Assembly is considered as the most feasible."

Kosovo Government officials have left open the possibility of trying to establish the special court without touching the constitution. In this case, the court's establishment would not depend on the 80 votes of the deputies. Only the support of half the Assembly's deputies would be required to adopt the law.

"For the time being, this is not being discussed as an option to move forward because the government still believes that there will be a broad-based consensus so that Kosovo can meet an international obligation stemming from the exchange of letters between President Jahjaga and Baroness Ashton," Besnik Berisha, the prime minister's adviser on legal issues, told this newspaper.

"However, since there is a decision to ratify the letter exchange, my impression is that there is a legal basis to consider other variants and not only the one that requires adopting constitutional amendments," he added. Berisha explained that he was making those comments in the capacity of a legal expert. [passage omitted]

Fisnik Korenica, executive director of the Pristina-based Group for Political and Legal Studies, argues that the Jahjaga-Ashton letter exchange, which now has the status of an international agreement, cannot serve as a basis for establishing the special court.

"The reason is very simple: international agreements like that one do not provide for redesigning the constitutional and judicial system of Kosovo, while the format that the specialized chambers is supposed to have will be completely different from the model described in our constitution. If the agreement envisages a model matching with the constitution's provisions and would not provided for in constitutional changes, it goes without saying that no constitutional changes would have been required to move forward," Korenica said.

"But, given that the specialized chambers and the law on the specialized chambers provide for relatively major constitutional changes, including changes to the justice system of Kosovo, the establishment of those chambers without adopting constitutional changes would be totally unacceptable," he added. [passage omitted]

[Source: By Koha Ditore, Pristina, Albania, 30Jun15]

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The Question of Kosovo
small logoThis document has been published on 03Aug15 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.