Kosovo’s legal order is based on the principle of separation of powers, whereby the judiciary is governed by the Kosovo Judicial Council. Kosovo’s legal system is based on the continental law tradition, whereby court decisions are generally not considered precedents, although lower courts tend to follow the opinions and rulings of higher courts.
Kosovo’s court system is comprised of the Basic Courts, the Courts of Appeal, and the Supreme Court. The function and systematization of the courts is regulated by Law No. 06/L-054 on Courts, enacted on December 18, 2018.
A Basic Court is comprised of five departments, namely: the Department for Commercial Matters, the Department for Administrative Issues, the Department for Serious Crimes, the General Department, and the Department for Minors.
The Commercial Department deals with cases concerning commercial disputes between domestic and foreign businesses. Moreover, it also deals with matters related to bankruptcy and liquidation of legal entities, disputes regarding the infringement of competition, intellectual property, and other matters provided by law.
The Administrative Department adjudicates administrative conflicts, the Serious Crimes Department treats cases related to various criminal offenses (such as aggravated murder, kidnapping, etc.), the General Department mainly deals with minor offenses and various civil cases in the first instance, which have not been specifically assigned to other departments. Minor offenses such as sanitary standards, as well as violations of traffic safety laws and public order rules also fall under the competence of the Basic Courts’ General Department.
The Courts of Appeal are second instance courts, which deal with complaints lodged against the decisions of the first instance courts. The Supreme Court consists of two departments, namely: a) The Appeals Panel of the Kosovo Property Agency and b) the Special Chamber of the Supreme Court.
Civil proceedings in Kosovo are governed by the Law on Contested Procedure, enacted on June 30, 2008. The litigation process begins with the filing of a statement of claim by the claimant. Prior to the commencement of the main hearing, the courts are required to hold a preparatory hearing, to be scheduled at the latest 30 days after the receipt of the statement of defense from the respondent.
Court expenses in Kosovo are rather low, which results in a very high number of litigation cases. However, the inefficiency of courts in the country appears to be very high. Specifically, the Strategy on the Rule of Law 2021-2026, published by the Kosovo Ministry of Justice, identifies four main problems in the functioning of the judiciary, namely: 1) delays in the judicial and prosecutorial system; 2) the need for increased professionalism and competency; 3) insufficient accountability; and 4) vulnerability to external stakeholders.
The length of proceedings remains one of the most critical and complex issues faced by the judiciary. It directly impacts the right to a trial within a reasonable time, as defined by the Constitution and the ECHR. In terms of the current backlog, civil and administrative cases are particularly problematic, with several factors believed to be the main cause. First, it is argued that there is an improper allocation of human resources in relation to the workload in the courts. Second, there seem to be some shortcomings in terms of internal procedures, which leads to the very common practice of cases being returned for retrial by the higher courts. Moreover, despite the existing legal framework for arbitration and mediation, parties are hesitant on submitting their disputes to any of such alternatives.
Taking into consideration the current situation, the establishment of a Commercial Court is deemed an essential change toward increasing the efficiency of the judiciary. The constitution of this court, being the main request from businesses and foreign investors, is expected to unblock unresolved cases of this nature and eliminate the conflict of competencies over commercial and administrative disputes – since all administrative conflicts initiated by business organizations will fall under the jurisdiction of the Commercial Court – leaving all administrative disputes initiated by individuals under the jurisdiction of the department for Administrative Matters. Thus, through Law No. 08/L-015 on the Commercial Court, the court will have the necessary resources, specialized judges, and case management procedures, thus leading to a faster and more professional case resolution.
As the Basic Court of Pristina carries the main burden of cases in all spheres, the Commercial Court is intended to decrease the backlog of cases in this court, as well as use a different approach in its transparency policies and specialized training.
By Ahmet Hasolli, Managing Partner, and Vjollca Hiseni, Associate, Kalo & Associates