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The Kosovo Specialist Chambers’ Rules of Procedure and Evidence

Published on August 17, 2017        Author: 

The Kosovo Specialist Chambers (KSC) and the Specialist Prosecutor’s Office (SPO) are the latest addition to a multi-layered and broad spectrum of international institutions dedicated to the investigation and prosecution of international crimes. In March 2017, the Judges of the KSC adopted the Rules of Procedure and Evidence (RPE), which are now finally available on the Tribunal’s website. In the following, I will provide a first analysis of the RPE and evaluate them against existing procedural laws of International(ized) Criminal Tribunals (ICTs). It goes without saying that, in the face of the sheer number of rules (211), this analysis can only be cursory.

The biggest achievement of the Judges certainly is that they translated the institutional uniqueness of the KSC – an internationalized tribunal with a Constitutional Chamber (‘Specialist Chamber of the Constitutional Court’) and the European Union as the primary sponsor – into the rules. This especially becomes apparent through the incorporation of an interpretation rule (Rule 4) into the RPE, which refers – inter alia – to ‘the framework as set out in Article 3 [KSC-Law]’. This Article 3 (its length makes it impractical to reproduce it here) is not only a modern version of Article 21 of the ICC-Statute. It also determines that the KSC shall adjudicate and function in accordance with the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the Constitution of Kosovo. This is remarkable in many regards: the preference to refer to the ECHR rather than ‘internationally recognized human rights’ (Article 21(3) ICC-Statute) has the potential of strengthening the rights of the defendant. The vagueness of the term ‘internationally recognized human rights’ has led to the assumption that it denotes something less than universal acceptance. The European human rights jurisprudence, by contrast, is one of the most developed and most discussed in secondary source material (Young, ICLQ 60 (2011), 204). Moreover, through its Article 22, the Constitution of Kosovo gives the ECHR constitutional value. Of course, one could think that this does not make any practical difference, since the ECHR is mentioned as a source of the KSC anyway. However, recall that Kosovo is not a party to the ECHR and therefore not internationally liable for its implementation. The reference to the ECHR in Kosovo’s Constitution makes these human rights justiciable because both the accused and the victim are entitled to make referrals to the Constitutional Chamber in relation to alleged violations by the KSC of their human rights guaranteed by the Constitution (Article 113(7) Kosovo Constitution). Thus, in questions of the KSC’s activity and subject-matter jurisdiction, it is the Constitutional Chamber – not an appellate body – that serves as the final authority for the interpretation of the Constitution (Article 49 KSC-Law). This turns the rights enshrined in the ECHR into basic rights and contributes to a constitutionalization.

Of course, the strengthened judicial review at the KSC through the establishment of a Constitutional Chamber comes at a price, and it does not take much to predict a governance problem. More concretely, as praiseworthy as a constitutionalized ECHR may be in theory, in practice it will not make it any easier for the Judges to face the daily task of running an ICT. Take, for instance, the first Constitutional Chamber judgment about the constitutionality of the KSC RPE, Rule 19 in particular: in the version that was first referred to the Constitutional Chamber on 27 March 2017, Rule 19 contained a paragraph 3 where a hearing could continue for no more than five working days in the presence of just two instead of three Judges, in case one Judge was absent due to circumstances such as illness. Such a rule has great practical importance and is modelled after Rule 16(A) of the Special Court for Sierra Leone (SCSL) RPE and Rule 15bis ICTY RPE. Nevertheless, the Constitutional Chamber declared Rule 19(3) KSC RPE unconstitutional, because Article 25(1) KSC-Law prescribes that the Trial Panels, Court of Appeal Panels and Supreme Court Panels are comprised of ‘three’ Judges, and the KSC-Law is silent on whether hearings may be conducted before a ‘Panel’ of two Judges (Specialist Chamber of the Constitutional Court, para. 39). Read the rest of this entry…

 
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