The primary Buzz in Kosovo at the moment, according to Kujtim Kervishi, Managing Partner at the Judex Law Firm in Pristina, relates to the increasing prospect of a new “vetting” of judges and prosecutors in the country.
According to Kervishi, this vetting — the country’s second, he reports, following a previous process carried out from 2006 to 2011 — is necessary “due to the fact that the community, the institutions, and the legal community are not very happy with the lack of accountability of the judiciary in Kosovo in general.” He reports participating in the first such process ten years ago, "and now I’m feeling that this is necessary again, because it’s highly crucial for the future of Kosovo that the country strengthens the judiciary, and in particular builds a judiciary that’s accountable to the future process of Kosovo.”
The Judex Law Firm Managing Partner says that "throughout the years the hiring of judges and prosecutors has involved a lot of people who, while not being formally or officially investigated, have been linked to a number of other serious corruption-related investigations.” In his opinion, "Kosovo needs to clear the judges and prosecutors who are connected to particular groups, as well as evaluate their accountability to ensure they are both respected and professional.” Indeed, he reports, a system review is necessary, as the country’s attempts to “clear the net” of incompetent or corrupt officials is patently not working. “We see every day that most of the cases in public are losing,” he says. “In around 80% of the cases involving high officials — cases related to corruption and abuse of public duty — the prosecutions have failed. In my mind there are only three possible explanations: (1) the prosecutors are making indictments without sufficient evidence; (2) or the court is unusually critical in deciding those cases on the merits … or (3) the courts are influenced by groups and the prosecutors are losing cases despite sufficient evidence.” He says, “this is obvious.”
Kervishi isn’t naive about the results. "I’m not 100% sure that the vetting of judges and prosecutors will clean the entire net,” he says, "but I strongly believe that it will increase accountability and it will clear some of the structures that do not deserve a mandate in the judiciary, as well as easing the Kosovo process towards the European Union, and simply serving the interests of justice.”
And corruption isn’t the only problem, of course, according to Kervishi. “In the Kosovo judiciary, sometimes you win a case which you did not even imagine you could win, and sometimes you lose a case that was effectively a slam dunk.” He explains: "This is not because of the preparation of the parties involved. This is mostly because of the deciding force — a court that mostly lacks sufficient knowledge in the relevant area of law.”
"And the reason you got to court is that you have no other way of settling the dispute,” he sighs. "We still have the culture of sending cases to court, even though we know that there is a high degree of uncertainty, and there is also a great reason to pursue the case to the very end — which can last ten years.” According to Kervishi, “in Pristina, for instance, a case filed today may come to trial after three years. And it can easily last one year in trial. Then in the court of appeals we’ll wait another one to two years until the decision is issued. Thus,” he says, "in most civil cases, until you have a final binding court decision from the court of appeals, you may wait from five to seven years. And justice delayed is justice denied.”
Not just delayed, of course. The consequences of this delay can alter the balance of risks of taking the case to court in the first place. "If we include the fees, and what we call the 'penalty interest' of 8%,” he says, "imagine how much the risk can increase if you wait for seven years!”
Kervishi points to another problem with Kosovar courts as well. “In addition, we are still lacking experience in the civil and administrative courts. As a result, the caseload is increasing, even though we have a notary system and a private bailiff system in place. And mediation as well as arbitration, both highly effective. Nonetheless, even with all these ADR mechanisms, the backlog is still increasing. Something is wrong with the system.”
"This society and community has been living and working with these courts,” Kervishi says, his frustration apparent. “But moving forward requires capacities which are capable of running and managing a court case quickly and with professionalism.” No formal decision has been made yet, Kervishi reports, as the need — and the methodology — is still under discussion. Still, Kervishi expects the process to involve “an international body of experts [who] will examine the professional capacity of the judges and prosecutors as well as their wealth, because in Kosovo there is a process of declaration for wealth for all judges and prosecutions, which remains available to the public at the anti-corruption agency.” And he says, politicians in the country are now speaking about it, so “it may happen very soon.” Kervishi says, unsurprisingly, "I personally strongly support it.”
He’s asked why he thinks the second vetting, if it happens, will be more effective than the first. “A couple of details can be done better than the last time,” he says. "Last time happened very fast, and the commission that time was starting from scratch. I believe this time we have a lot of know-how, and I believe whoever is in charge of this can look at examples in Albania and elsewhere in the region to build a vetting process that will give us the results which society desperately needs for a fast and professional judiciary."