EULEX mandate extended amid reports of corruption investigations into EULEX judges and prosecutors

Concerns over accountability mechanisms within EULEX and its effectiveness raise inevitable questions as to whether an institution with such a record and structure can be effective in combating corruption and strengthening justice in Kosovo. Indeed, the establishment of the new special war crimes court is seen by some as evidence of an international vote of no confidence in EULEX’s ability to fulfill its mandate.

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By Dr. Anita McKinna

On Friday, EU High Representative Catherine Ashton accepted Kosovo President Jahjaga’s request for a two-year extension of the EU rule of law mission EULEX beyond its current mandate of 14th June this year, and the establishment of a special court for the investigation of war crimes committed by the KLA. This request came just over a week after local news in Kosovo and Serbia reported that an investigation had been launched into some judges and prosecutors from EULEX who are suspected of taking bribery from local lawyers on war crimes cases. The reports named the high-profile prosecutor Maurizio Salustro and judge Francesco Fiori as being under investigation. The issue of international corruption in Kosovo was already in the media after it emerged that the former US Ambassador to Kosovo, Christopher Dell, who had been criticised for lobbying for the construction of a major highway from Kosovo to Albania, had been employed by the construction company that won the contract to construct it.

But it is the reports of investigations into EULEX representatives that will impact on support for the continuing presence of the EU rule of law mission in Kosovo. After persistent questions over EULEX’s accountability, legitimacy and effectiveness since the mission became operational in 2009, any corruption investigations into members of a mission that has the purpose of strengthening justice and fighting corruption will have a detrimental effect on perceptions of EULEX within Kosovo and internationally, and will inevitably raise questions about the justification for EULEX’s continuing presence in Kosovo.

From the beginning of the international administration in post-war Kosovo, the strengthening of the judiciary has been both a publicly proclaimed priority and one of the biggest challenges. The very presence of a mission like EULEX in Kosovo after the official end to the ‘Supervised Independence’ period demonstrates that the justice system, and fighting corruption in particular, is seen by both internationals and locals to be in continued need of international support. In February, on the fifteenth anniversary of NATO’s intervention in the Kosovo war, local newspapers printed frustrated editorials about the scale of corruption in the country. Zëri’s Arbana Xharra lamented that ‘contrary to Thaçi and Jahjaga’s speeches about ‘the consolidated democratic state, progressing towards EU and NATO integration’, citizens will wonder: How many murders happened since 1999? How many properties have been usurped? Who became a millionaire overnight? …Who has the monopoly over the most significant assets of the territory? Where are the prosecutors and police investigators?’ Kosova Sot’s editorial echoed similar sentiments, and declared that ‘we won our freedom, but the abuse of peace deepened every day. We now have the state but we do not have justice… The truest of the citizens has been abused, while no one from the leadership has the political courage to admit the unforgivable deviation from the ideal for which freedom fighters gave their lives.’ An opinion poll conducted by UNDP from August 2013 found that such a lack of confidence in the justice system’s ability to fight corruption was widespread, with only 10.6% of respondents agreeing that the judicial system in Kosovo was independent in its decisions, down from 15.6% in June 2011.

While there is no question that Kosovo’s justice system still has substantial shortcomings, EULEX has not been embraced within Kosovo as the panacea for its judicial system problems. Since its beginning, EULEX has suffered from recurring concerns over both its accountability and its effectiveness in prosecuting serious cases of corruption and war crimes. As local think-tank KIPRED explained: ‘its overall budget and the large number of staff, at least compared to other EU missions abroad, have, by default, increased expectations both among the local population and among the policy makers in Brussels and the EU Member States. The initial overambitious bombastic statements by some of the mission’s high profile officials about mission’s intentions and capabilities to fight corruption and organised crime in Kosovo, not only have they increased expectations, but they have also provided hopes that dramatic improvements would unfold on the ground’. A lack of results after the initial declarations that EULEX would catch ‘big fish’ meant that the high expectations were not met, and support for EULEX deteriorated as it became one of the least popular international institutions in Kosovo. The Kosovo Security Barometer in December 2013 found that 39.7% of respondents were unsatisfied with EULEX, compared with just 14% being unsatisfied with KFOR.

As EULEX has immunity against local legal and administrative process, a perceived lack of accountability is another issue that has restricted support for EULEX. The Kosovo Institute of Peace illuminated the importance of accountability mechanisms for a mission like EULEX: ‘one of the most sensitive and important aspects of post-conflict operations is the availability of accountability mechanism to compensate for the lack of democratic mandate and popular legitimacy’. Questions over EULEX’s accountability have been raised not just in Kosovo but also internationally. In 2010, the Council of Europe’s Venice Commission advocated heightened accountability mechanisms and asserted that ‘EULEX should be put under a more stringent review’.

Coupled with these latest reports on investigations into EULEX members themselves, concerns over accountability mechanisms within EULEX and its effectiveness so far, raise inevitable questions as to whether an institution with such a record and structure can be effective in combating corruption and strengthening justice in Kosovo. Indeed some see the establishment of this new special war crimes court as evidence of an international vote of no confidence in EULEX’s ability to fulfill its mandate.

Dr. Anita McKinna is an Australian academic researcher based in Cambridge. She has been researching issues related to Kosovo and the Balkans since the late 1990s. She completed her PhD on the international administration of Kosovo at the University of Melbourne, after having attained an MPhil on the post-war reconstruction of Kosovo from Cambridge University. She has published articles on the interaction of international administrators and local political actors in post-war Kosovo in several international academic journals.

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21 Responses

  1. I would disagree with the contents of the article, and I think it would be have been wiser to contact EULEX sources directly. From what I understand, there is an ongoing investigation, but the two persons mentioned in teh article are not the suspects. EULEX sources can confirm this. It is however strange that as soon as EULEX started touching some of the big fish, similar articles surfaced on the press on a few occasions, which is significative enough. Moreover, teh article omits to mention the existance of the Human Rights Review Panel, an independent body in charge of revising allegations of Human Right violations caused by EULEX. Although its recommendations are not bindng, it is one of the few tools to seek accountability from EULEX. I am not working for EULEX, but workign on judicial issues in Kosovo, occasionally cooperating with EULEX, and i have a quite privileged point of view on the situation.

    1. Torsten

      Unfortunately, I cannot share this view on EULEX, especially not in so far as the HRRP is concerned. I myself had the great pleasure to work for EULEX as an international judge. I experienced serious attempts by the chain of command to infringe my independence. I also experienced the strong impact the factual lack of independence of so-called “contracted judges” can have on the outcome of certain legal decisions. Contracted judges (I myself was seconded by my member state) for the extension of their one year contracts depend heavily on the evaluation “granted” to them by the President of the Assembly of EULEX Judges. Such an extension is important, especially if one is a comparatively poorly paid judge in one of the eastern member states of the EU or even in Turkey and faces the temptation of a round about 9.000 Euros monthly salary in the EULEX Mission. Concerning the HRRP I experienced that the selection of the EULEX Judge to be a member of the panel (the panel consists of 3 members) is everything but transparent. During the time I served in EULEX there were at least two judges that have been appointed as members of the panel immediately after they – on intervention by the PAEJ – had suddenly changed their opinion on a crucial legal question. The first of those appointments had immediately been revoked due to the fact that the Turkish judge concerned did not even hold the necessary security clearance. The second appointment ended when it turned out that the concerned judge from Poland did not fulfill the legal conditions to be appointed as an International Judge at all, for which reason the judge also had to leave the mission. There does not have to be any connection between those judges changing their opinions all of a sudden and their “promotion” to the HRRP. But it at least leaves a kind of smell. Especially taking into further consideration that the EULEX Judges from Turkey afterwards took a legally very strange decision in a highly political case concerning the Decani Monastery and afterwards – also almost over night – has been promoted to the appeals panel in charge of Kosovo Property Agency related matters.
      That does not mean that I believe that Francesco Florit and Maurizio Salustro took bribes. I even very much doubt they did, although I do not consider Mr. Florit, who also was the President of the Assembly of EUELX Judges for quite some time, to have been the best choice for a position as an international judge. But the way I experienced the EULEX Mission I am convinced that not everyone, especially in the Justice Component, always sticks to the law and fulfills the standards necessary for someone who, coming from outside, has to safeguard the implementation of the rule of law in a society in transition. And the HRRP is definitely not a proper instrument to guarantee the necessary accountability.

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