Following the 2008 Kosovo Declaration of Independence and the change in public powers in Kosovo, Azemi v. Serbia was the first decision in which the ECtHR examined whether Serbia continued to have jurisdiction in Kosovo. The applicant, Ali Azemi, a national of Kosovo, alleged that Serbia had violated his rights under Article 6 (1) of the Convention by failing to enforce a decision rendered by a court in Kosovo in 2002. The applicant argued that Serbia bore responsibility for the enforcement of the Convention rights throughout its territory, including Kosovo.
On November 5, 2013, the ECtHR found that Serbia could not be held responsible under Article 1 of the Convention for the non-enforcement of a decision of a Kosovo court. The Court had previously sustained the presumption of Serbia’s de jure jurisdiction in Kosovo. However, in the Azemi case in examining the period after the Declaration of Independence it departed from that view by way of establishing the presumption of neutrality with regard to Kosovo.
In November 2007, the ECtHR held in the Behrami case that:
[w]hile the UNSC foresaw a progressive transfer to the local authorities of UNMIK’s responsibilities, there is no evidence that either the security or civil situation had relevantly changed by the dates of the present events. Kosovo was, therefore, on those dates under the effective control of the international presences which exercised the public powers normally exercised by the Government of the [Federal Republic of Yugoslavia, now Serbia].
Following the Court’s decision in Behrami, fundamental changes took place in Kosovo. The Declaration of Independence and the Kosovo Constitution not only repealed UNMIK regulations but also allowed Kosovo institutions to take over competencies exercised previously by UNMIK. In the context of those changes, international judges of the European Union Rule of Law Mission in Kosovo (EULEX) recently outlined that after the adoption of the Kosovo Constitution, UNMIK had omitted to administer Kosovo and had failed to adopt any legislation.
In view of the Strasbourg Court’s case-law and with these new circumstances in place one could have expected that for the purpose of Article 1 the Court would adopt one of the following two approaches. Firstly, in line with its Behrami standard, examine whether Serbia had remained a presumed sovereign power in Kosovo. If that presumption were sustained, it would further need to examine whether Serbia had taken positive steps to secure the rights and freedoms of the Convention in Kosovo after the change of circumstances. If the Court, on the other hand, were to depart from Behrami, it would, secondly, be relevant to discuss the legal basis for a finding on the discontinuation of Serbia’s de jure jurisdiction. The Court did not reflect upon any of these matters in its assessment. Although the Court concluded that it “[could not] point to any positive obligations that the respondent State [Serbia] had towards the applicant”, it did so without assessing whether Serbia had used all legal and diplomatic means available to it vis-à-vis UNMIK or Kosovo institutions to secure the application of the Convention. The Court neither examined whether the presence in Kosovo of KFOR and EULEX had any impact on the timeframe of Kosovo’s international administration. Instead, the Court appeared to put emphasis on the legal developments following the Declaration of Independence. The Court took note of these changes and held that
[o]n 17 February 2008 Kosovo proclaimed its independence, having been subsequently recognised as independent by at least 89 States. On 15 June 2008 the Constitution of Kosovo was adopted. On 10 September 2012, apart from the exercise of certain “residual responsibilities” by UNMIK, the end of “supervised independence” was declared. In these circumstances, the Court is satisfied that there existed objective limitations which prevented Serbia from securing the rights and freedoms in Kosovo.
In view of the Court’s insistence in its previous case-law on the State’s positive obligations, one may question whether Kosovo’s independence and the UNMIK spectator’s role could exempt Serbia – if it were considered a presumed sovereign power in Kosovo – from any positive steps to secure the rights and freedoms of the Convention.
The question whether the Court continued in line with Behrami to view Serbia as a presumed sovereign power in Kosovo is further blurred by the type of the case-law it applied with respect to Kosovo. In particular, the Court further ruled as follows
[n]either can it be said that the Serbian authorities supported militarily, economically, financially or politically Kosovo’s institutions (compare and contrast Catan, … Ilaşcu … and Ivanţoc where the Court concluded that Russia had so supported the Transdniestrian region of the Republic of Moldova).
In the Ilaşcu case, Russia operated with respect to Transdniestrian region as a foreign State. The use by the Court of such case-law raises a question whether it viewed also Serbia as a foreign State with respect to Kosovo and, as such, the test under Article 1 would take place in the context of an extra-territorial jurisdiction.
The Presumption of Sovereign Neutrality with regard to Kosovo
The above observations are amplified when comparing the way in which the Court has before and after the Declaration of Independence described the Kosovo’s status. In November 2007, when Kosovo was about to declare its independence, the Court described in the Behrami case the applicant from Kosovo as a resident of “Mitrovica, Kosovo, Republic of Serbia”. Back then the Court found irrelevant to indicate that Kosovo’s final status was – pursuant to UNSC Resolution 1244 – undetermined. Yet, in describing the identity of Azemi, the Court made no connection to Serbia. Instead it provided that the applicant was “a national of Kosovo” living in “Ferizaj, Kosovo”, although the word “Kosovo” was followed by the widely-used asterisk which represents the “status neutral” position with respect to Kosovo’s distinct personality following the Declaration of Independence.
In view of the foregoing considerations, it emerges that the Court was cautious to avoid an explicit statement as to who was the sovereign power with de jure jurisdiction over Kosovo. As the asterisk indicated in the present case the neutrality on that matter, so did the Court in adopting a new presumption of neutrality with respect to Kosovo. Here, a note could be made that the intention behind the “Asterisk Agreement” was to allow Kosovo’s own representation in regional forums without UNMIK. This Agreement therefore would not have an immediate consequence of interrupting Serbia’s obligations under the Convention in Kosovo, particularly when Serbia claims to have sovereign rights there (e.g. compare with Matthews v. UK). As the Strasbourg Court was tasked to examine Serbia’s jurisdiction in Kosovo, the presumption of neutrality did not therefore serve to reinforce Serbia’s de jure jurisdiction but rather resembled its discontinuity.
It must be noted that in cases emanating from non-controlled territories of the Convention Members, the ECtHR has been cognizant that State’s de jure jurisdiction is sometimes interchangeable with sovereignty. In this vein, it is unsurprising that the ECtHR’s findings in the cases of Northern Cyprus, Transdniestria, Nagorno Karabakh, are, as important for defining the territorial application of the Convention as they are for the law of statehood.
Aware of the political ramifications of such cases, the Court has not been reluctant to reinforce the territorial sovereignty of its Convention Members over secessionist entities. However, the new legal and factual reality in Kosovo may have prompted the Court in the Azemi case to develop an unprecedented approach on the question of jurisdiction in that territory.
In this vein, the Azemi case appears to share commonalities with the ICJ Advisory Opinion on Kosovo for disfavoring the continuation of Serbia’s sovereignty in Kosovo. Like the Kosovo Advisory Opinion, the Azemi case will not be remembered for its problem-solving approach by way of setting standards or making lucid answers. Instead, its highlights are concealed as much in its findings as in what it left unsaid.
At the same time – from the perspective of the Council of Europe’s regime of human rights – a question persists whether the Kosovo territory now remains a no man’s land. It appears that unlike in other certain “lawless areas within the territory of the Council of Europe Member States … to which the Convention … is inapplicable de facto” (diss. op. of Judge Kovler in Ilaşcu) due to lack of control, in the area of Kosovo the Convention system has become inapplicable de jure.