IBNA Interview/ “Special Tribunal on Kosovo has no legal grounds”

IBNA Interview/ “Special Tribunal on Kosovo has no legal grounds”

In an exclusive interview for IBNA, professor and prominent analyst of legal affairs, Prof. Dr. Bashkim Selmani, talks about the foundation of the Special Tribunal on Kosovo and the consequences that may come from this institution which will try the KLA alleged crimes, based on Dick Marty’s report, who is a representative of the Council of Europe

IBNA: What is your opinion on the creation of the Special Tribunal? Is there legal basis for the United Nations to create the Special Tribunal, which will try the crimes in Kosovo, in case institutions of Kosovo fail to do this?

Selmani: The idea for the creation of the Special Tribunal in the Republic of Kosovo is the first signal for the violation of the Constitution of the country. We must first explain how the court is established legally.

The Constitution of the country foresees the establishment of regular and extraordinary courts and this idea in the principles for the creation of courts proposed from abroad, is absurd and  provokes distrust from the citizens of Kosovo and all of the Albanians wherever they area in regards to the international foreign community that operates in the Republic of Kosovo.

Secondly, in order for this idea to be proposed by the UN, the UN must first recognize Kosovo and then exert its rights on Kosovo.

Thirdly, this organization must explain the reasons why it is demanding the creation of this court.

IBNA: Do you think that the role of the Special Tribunal and who will work in it are clear? What will be the role of the current judges of EULEX or international judges?

Selmani: The public opinion in Kosovo is also unclear. We do not know what are the motives for the creation of this court. If the purpose is to try crimes, then this organization must be held responsible for allowing these so called crimes to happen at the time when it exerted a legislative and judicial role in Kosovo.

As far as who will work in it is concerned, there are special regulations that foresee the appointment and removal of judges. There are no obstacles and unclear things on this point, because there are clear legal procedures that candidates must meet.

But, when it comes to Albanian judges, the fact that the proposal comes from abroad, puts in doubt the work of Albanian judges. So far, all cases of serious crimes have been handled by EULEX.

IBNA: What will be the role of the current EULEX judges or international judges?

Selmani: So far there’s little knowledge, because the public opinion is unclear what its role will be, how will it be founded, what will be its powers, what will be the role of this tribunal, what cases will it try, what citizens will it defend, what rights have been violated in the Republic of Kosovo.

Thus, there are a number of international principles that it’s hard for us to understand in the legal aspect, for the foundation of this tribunal, if we bear in mind the international conventions for the creation of special courts and the Constitution of the country.

If this tribunal is created to serve the interests of the citizens of the Republic of Kosovo, then the Constitution obliges institutions to hold a referendum if they want and if it’s necessary to create this court.

IBNA: Do you think that the political arena in Kosovo will be affected more by the creation of this Special Tribunal?

Selmani: This is truly debatable topic and leaves room for doubt, since the moment when it was announced that this court must be founded in the Republic of Kosovo and will try all of those who may have not been able to be tried, as they were vested with power. But this is also an unfounded claim.

IBNA: Some reports issued by organizations, say that the justice system in Kosovo is having problems. Who is to be blamed for this situation?

Selmani: The judicial system in Kosovo, but also in all neighboring countries and Southeast Europe is facing difficulties. The justice system in Kosovo is facing with one of the viruses of this nature, because the more independent the judicial system, the stronger the democracy is.

But here, there are also a number o other factors such as salaries of judges, corruption, politically appointed judges, nepotism, inadequate professional formation, inadequate safety of judges, family ties and other factors that can be analyzed and identified as factors that can harm the judicial system in Kosovo.

IBNA: What are the necessary reforms that the young state must deliver in strengthening the rule of law, fight corruption and organized crime?

Selmani: We believe that many reforms and many laws have been adopted in Kosovo, but it’s still not enough, because citizens have many complaints and are unhappy. So far, these reforms have not brought the result expected by the citizens. But it’s necessary to point out that the rule of law is not made by good laws, but by excellent people in the right places. Therefore, a philosopher says that ‘in a country where the professional is not in his profession, there is no state’. This makes us conclude that practices of recruitments have contributed in the fact that our state is not functional, violating these principles which are being respected by countries with functional traditions of the rule of law and justice in general. /ibna/