catalogue of recommendations - european external action ... · the first version of the catalogue...

An EU funded project managed by the European Union Office in Kosovo

Catalogue of Recommendations

EU project ”Support to the Kosovo Judicial Council / Kosovo Prosecutorial Council” Contract 2011 / 271 – 244 & 2014 / 350 – 729


Introductory Note to the ‘Catalogue of Recommendations’

February 2016

This publication has been produced with the assistance of the EU Office in Kosovo. The contents of this publication are the sole responsibility of Human Dynamics and can in no way be taken to reflect the views of

the European Union.

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Introductory Note to the ‘Catalogue of Recommendations’

Background

The Project ‘Support to the Kosovo Judicial/Prosecutorial Council’ was in its third year of implementation when the first version of the Catalogue of Recommendations was elaborated by the Project, discussed with and adopted by the KJC and KPC, and then distributed to all stakeholders in July 2014.

This was the right time to strike a balance, and to ascertain what had been achieved in regard to the scope of the Project and what still needed to be addressed.

The Project was extended in October 2014 for 18 months, at which time new activities were included in the Project Plan.

As of this writing, the Project is at the end of the second implementation phase (October 2014-April, 2016), and the first version of the Catalogue of Recommendations was reviewed and revised according to the level of the implementation of the recommendations. Thus, the Project hereby provides the KJC and KPC with a revised version of the Catalogue containing a new column “Final comments - February 2016”. The updated version of the Catalogue aims to show the current status of the implementation of each recommendation, thereby supporting the Councils in their further activities for implementation of the recommendations.

The Project’s activities were directed at four key areas:

• Organisation, function and structure of the Councils (Component I)• System of recruitment and appointment of judges and prosecutors (Component II.1 and III.1)• System of evaluation of judges and prosecutors (Component (II.2 and III.2)• Disciplinary system for judges and prosecutors (Component II.3 and III.3)

Some additional activities were included in an addendum from 2013:

• Legal remedies against decisions of KJC/KPC (Component I)• Public Communication for KJC (Component IV)• A National Centralized Criminal Record System (NCCR) (Component IV)

The new Project plan for the extension of the Project contained 22 new activities allocated under the four components that had already been implemented, together with outputs that had been elaborated by the Project submitted to the KJC and KPC.

The newly added last column of the updated Catalogue of Recommendations named “Final comments February 2016” refers to findings of Project activities that were most recently implemented during the extension of the Project, the achievement of the Councils in the last one year and a half, the new challenges, and last but not least the comments refer to the Law amendments of the four Laws: LKJC, LKPC, LC and LSP, adopted on 28 May 2015.

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Structure of the Catalogue

In order to assess what has been achieved and what is still waiting to be addressed, the Project elaborated a comprehensive catalogue, which contains the following parts:

• the main recommendations put forward during the whole process of implementation of the project inthe key areas;

• the main responsible body for the implementation of the recommendation• a brief information on the status of implementation and actions that still need to be taken in July

2014.• an assessment on the status of implementation by using three indicators:

o ‘N’ for ‘NO’, meaning that a recommendation was not implementedo ‘Y’ for ‘Yes’, meaning that the recommendation was fully implementedo ‘P’ for ‘Partial’, meaning that the recommendation was at least partially implemented.

• A reference to international documents containing international standards (see below: internationalsstandards);

• Brief information on the status of implementation in February 2016 (the last column)

How to Read the Catalogue

When creating the catalogue, a balance was needed to be found between completeness and the readability/usefulness of the catalogue. A list that contained too many details would risk adoption of a format that would not enable a reader to get a general understanding of a situation because the document would be too focused on details. Thus, only the main recommendations were included in a condensed manner.

A wide range of recommendations was accepted by the Councils by adopting respective Regulations, Codes and Plans. Most comments and recommendations that were put forward in the context of the elaboration of the Regulations were not included in the catalogue. However, they were implemented. It should be explicitly mentioned here that the following legal acts have to be taken into account when assessing the status of implementation of the recommendations:

Furthermore, it has to be highlighted that the Project elaborated seven manuals during the first 3-year implementation phase of the Project, which contained 128 forms and templates.

• Manual on Evaluation of Prosecutors:12 templates and forms• Manual on Appointment of Prosecutors: 28 templates and forms• Manual on Disciplinary Proceedings against Prosecutors in Kosovo: 10 templates and forms• Manual on Disciplinary Proceedings against Judges in Kosovo: 9 templates and forms• Manual on Evaluation of Performance of Judges: 17 templates and forms• Manual on Appointment of Judges: 34 templates and forms• Manual on the Investigation in Disciplinary matters (ODC): 18 templates and forms

Each of these manuals contain guidance on how to implement the recommendations in the area of appointment, evaluation and disciplinary liability in the daily work of the supporting staff, the Committees of the Councils and the Councils themselves.

The on-going process of drafting and approval of new Regulations and revision of the Regulations in force carried out by the Councils with the support of international partners requires review and revision of the SOP elaborated by the Project and included in the Manuals listed above. Some of the SOPs are already revised and new SOPs were elaborated by the Project. For instance, the Project supported the drafting of the new SOP

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for implementation of the newly adopted KPC’s Regulation on Recruitment, Exam and Appointment of Prosecutors issued by the KPC on 1 December 2015. However, both Councils still need support in the revision of the most of the SOPs following the new regulatory framework.

Furthermore, the Project also elaborated a Correlation Table linking provisions of the Code of Ethics for Prosecutors with legal norms and paragraphs of the Commentary to the Bangalore Principles, which show how to apply international standards in the area of disciplinary liability. Unfortunately, when assessing the status of implementation in February 2016 it was concluded that this useful document has still not been applied by the disciplinary bodies.

Moreover, 111 job descriptions and 3 organisation charts were elaborated during the first implementation phase stage of the Project, including:

• 66 job descriptions were elaborated for KJC.• 32 for the KPC and the Secretariat of the Chief State Prosecution Office13 for the ODC.

It should be stated out that the establishment of a separate Secretariat to the KPC by the lawamendments of the LKPC requires a set of measures to be applied by the KPC, including issuing of a newRegulation, approval of a new Organigram of the Secretariat, review and revision of the Jobdescriptions, and so forth.

Last but not least, the Project assisted – mainly the KPC – in the period of transition with a view to the structure reform end of 2013, and put forward a wide range of recommendations in reference to several preparatory acts. Most of them were accepted.

Also, these documents are implementing measures by nature and thus are part of the implementation status. However, they are not, or not completely, reflected in the Catalogue.

If we would take a merely numeric approach, it is very reasonable to assume that most recommendations have been fully implemented during the first implementation phase of the Project because they are reflected in the newly adopted Regulations, Codes, job descriptions and Plans, as well as in the new SOPs contained in the Manuals which are in use. However, after the Law amendments of the primary four laws – LKJC, LKPC, LC, LSP adopted on 28 May 2015, a lot of new Regulations and revisions of the existing Regulations, issued by the Councils should be drafted and approved by the KJC and KPC. The respective amendments and new regulatory provisions reflect the procedural rules and SOPs. Thus, the Project and the Councils were involved in a very intensive process of drafting, revising, commenting and discussing the new Councils’ Regulations and SOPs during the last eight months. Both Councils approved Action Plans for issuing their respective Regulations following the law amendments. The Project activities in this regard were the subject of comments in recent Quarterly Progress Reports and the Final Report. Some of the outputs in this regard are summarized in the comments included in the newly added last column of the Catalogue.

The Project provided significant support to the Councils in the areas of Strategic Planning, Policy Development, Budgeting of Judicial and Prosecutorial Systems, establishment and development of a National Centralized Criminal Record System during the second implementation phase (October 2014-April 2016), which are analysed and assessed in the Final report. Very few recommendations in regard to the areas mentioned above are included in the Catalogue. Thus, the Catalogue should not be accepted as a comprehensive document that contains all of the Projects’ recommendations.

The Catalogue should rather be seen as a list of recommendations that directly refer to international standards and still need to be addressed and not as an overview of what has been implemented and what has not been implemented.

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With that said, it is necessary to make some more precise points:

• The Catalogue is not ordered by priority. The recommendations are listed according to their subjectmatter, and not according to their importance. It is evident that not everything can be achieved atonce. This prioritization needs to be done by the Councils, as the members of the Councils are bestaware of the urgencies of the needs and as it depends on many factors, such as the political will,allocated budget, available resources in terms of capacity, time and personnel. However, from a Rule ofLaw and fundamental rights perspective, a prioritization in general lines may be proposed, as indicated below.

• Not all recommendations are of the same importance, some are mere options, referring to bestpractice examples.

• A wide range of recommendations require changes in the law. In this respect, it is not in the hands of theCouncils to determine the roadmap, the timing and content of the changes. Nevertheless, also the Councilsshould be considered as addressees of such recommendations as they may play a more active role indeveloping policies in the justice sector and in putting forward policy recommendations to legislativebodies. The new law amendments and the actions taken by the Councils for their implementationsthat refer to the recommendations listed in the Catalogue are the subjects of brief comments in the lastcolumn of the updated version of the Catalogue

• Policy decisions need time, and the system needs time to ‘digest’ recommendations. In many cases, arecommendation may be implemented in different manners. The different options need to beclarified, weighed, discussed with different stakeholders, decisions need to be taken. This is a timeconsuming activity. We all know that in particular law amendments sometimes need years: they needcareful planning and a transparent and participatory involvement of all relevant stakeholders. TheProject activities implemented in the second (one year and a half) implementation phase were verymuch directed to the capacity building of both Councils in respect to policy analysis and policydecisions. Concept documents were elaborated by the Project and submitted to the Councils, such as aconcept document for training of Judges and Prosecutors, a concept document for the disciplinary systemfor judges and prosecutors, a concept document supporting the Draft law on the ODC, and so forth. Thus,the Project provided the Councils with new policy documents focused on developing the capacity ofjudicial bodies for policy decisions.

• The Project’s first implementation phase fell into the time of the establishment of a new structure of thecourt and prosecution system on the one hand, and the adoption of the new Criminal Procedure Code onthe other. These system changes were successfully implemented throughout 2011/12, and absorbed alot of resources of the Councils in the first period of implementation, involving also Project resources.The new challenge for the Councils is to analyze and assess the effectiveness and efficiency of the newstructure, and to take the respective measures for strengthening the new court and prosecution bodies.

• Some recommendations are very synthesized, meaning that they are presented in a very generalapproach leading to an assessment of the status of implementation as ‘P’, not showing any more that ahigh percentage was implemented and there are only minor aspects to be still addressed.

International Standards

For most recommendations, the Catalogue of Recommendations provides a reference to one or more documents containing or establishing an international standard.

Several bodies at European (mainly at the Council of Europe level) or international level (mainly at the UN level) have adopted recommendations, opinions or principles regarding the standards of the judiciary in a democratic society that are of an advisory, non-binding nature.

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These non-binding international standards seek to highlight the range of issues that should be considered regarding the administration of justice. When using these documents in the national context, the user may need to revisit provisions of the national constitution or other law, and assess existing rules, procedures and mechanisms of accountability. In doing so, it will, no doubt, take into consideration its capacity and resources, and its level of economic development; existing but different mechanisms that adequately address the same concerns; and, the fundamental principles of its own legal system. Finally, usually these documents are rather broad in scope and do not list an exhaustive range of measures that can be adopted in relation to the justice system; they are generally open to alternative approaches that may meet their spirit and requirements.

Furthermore, it needs to be highlighted that these international standards are evolving. While, for example, in Opinion 10/2007 of the CCJE it is stated that the Council for Judiciary can be either composed solely of judges, or have a mixed composition of judges and non-judges, and that the chair should be a judge, the Recommendation of the Committee of Ministers of the Council of Europe CM/Rec (2010) 12 requires that ‘not less than half of such members of (judicial) councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.’ The Venice Commission in 2011 in its Opinion No 626/2011, referring to the Law on Judicial Council of Montenegro, suggests a ‘composition with a parity of members coming from the judiciary and from the rest of the society’ in order to avoid ‘autocratic management of judges.’ It goes even further to propose that the chair of the Council ‘be elected by the Judicial Council from among the lay members in order to ensure the necessary links between the judiciary and the society, and to avoid the risk of an autocratic management of the judiciary.’ These examples show clearly that these international standards are always to be read and understood in their context and evolving nature. Kosovo’s institutions, therefore, will have to consider the facts and local circumstances and take tailored policy decisions. Where a policy decision takes into account divergent international standards, and - by referring to local specificities - is based on transparent and well-reasoned considerations, this will be acknowledged also by the local and international community.

The referred international standard might not be found and identified by the same wording, but the rationale behind the recommendation has the basis in the referred document. Some recommendations are very general and the referred international standard might be more specific and detailed, or vice versa.

Moreover, additional standards are to be found in these documents. As stated in the introduction, this Catalogue is a collection of recommendations put forward by the Project’s experts within their mandates in the course of the implementation of the Project activities, which always had limited scopes.

The international documents used as reference documents for the catalogue are listed below. The column ‘international standard’ in the Catalogue only refers to the number of the document as set out in this list. Most recommendations refer to several international documents. However, the references are not exhaustive. Other international documents are relevant.

The international documents listed below were translated into Albanian by the Project and included in a Reference book with international documents, submitted to the Councils and other relevant bodies and institutions in October 2014.

Furthermore, during the second implementation phase of the Project, additional international documents were collected and used by the experts. Most of the reports and comments elaborated within this period of time refer to these new international documents. The Project elaborated a new list of international documents (more than 70) regarding Project activities that were implemented and divided by areas, including references to respective web pages. The newly elaborated list of international documents (an annex to the Project Final Report) would be very useful for the Councils, and to international programs and programs involved in future activities aimed at developing and strengthening the Councils.

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List of referenced documents included in the Catalogue and in the Reference book, containing international standards:

1. European Convention on Human Rights, case law of the ECtHR

2. UN Basic Principles on the Independence of the Judiciary, 1985

3. European Charter on the statute of judges (1998)

4. Recommendation Rec (2000) 19, of the Committee of Ministers on the role of publicprosecution in the criminal justice system

5. Opinion No 1/2001 of the consultative Council of European Judges (CCJE) on Standardsconcerning the independence of the Judiciary and the irremovability of judges

6. Opinion no. 3/2002 of the Consultative Council of European Judges (CCJE) on the principles andrules governing judges’ professional conduct, in particular ethics, incompatible behaviour andimpartiality

7. Opinion no 4/2003 of consultative Council of European Judges (CCJE) on appropriate initial and in-service training for judges at national and European levels

8. European Commission for the Efficiency of Justice (CEPEJ) on Councils for the Judiciary in EU Countries,2003

9. Opinion No. 6/2004 of CCJE on fair trial within a reasonable time and judge’s role in trials takinginto account alternative means of dispute settlement

10. Opinion no 403/2006 of Venice Commission on Judicial Appointments

11. Opinion no 10/2007 of the Consultative Council of European Judges (CCJE) on the Council for theJudiciary at the service of society

12. Opinion No 626/2011 of the Venice Commission on the draft amendment to the Constitution ofMontenegro, as well as the draft amendment to the Law on courts, the Law on StateProsecutor’s Office and the Law on the Judicial Council

13. The Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and CentralAsia, 2010, OSCE and ODIHR

14. Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct, 2010

15. Recommendation CM/Rec (2010)12 on judges: independence, efficiency and responsibilities

16. CCJE 3/2010, MAGNA CARTA OF JUDGES (Fundamental Principles)

17. Opinion no 648 / 2011 of the Venice Commission on Legal Certainty and the Independence of theJudiciary in Bosnia and Hercegovina

18. Opinion No 668/2012 of Venice Commission On Hungarian Act on Prosecution Service and on Statusof Prosecutor General, Prosecutors and other Prosecution Employees and theProsecution Career

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19. European Network of Councils for the Judiciary on Minimum Standards regarding evaluation ofprofessional performance and irremovability of members of the judiciary, 2012 – 2013

20. Venice Commission Opinion no. 712/2013 on the draft Law on the High Judicial andProsecutorial Council of Bosnia and Herzegovina

21. Venice Commission and DHR no. 751/2013 Joint Opinion on the draft Law amending andsupplementing the Judicial Code (evaluation system for judges) of Armenia

22. Venice Commission Opinion no 755/2014 on the draft Law of the Republic of Moldova on theDisciplinary Liability of Judges

Conclusions

In total, 141 main recommendations were identified. More than two thirds of them are at least partially dependent on amendments to the Constitution or the justice laws. Though prioritization is a core task of the Council and other local stakeholders, some areas need to be considered of high priority from a Rule of Law and fundamental rights perspective.

Statistics:

The table includes 141 recommendations, which refer to the following areas:

14 12 13 3 Component I 5 6

• Appointment/Transfer/Promotion of Judges/Prosecutors 31

24 Component II and III

• Composition and Structure of the Councils• Competences of Councils and Procedural Safeguards• Training as task of the Councils• Evaluation of the Justice System• Budget Issues• Strategic Planning

• Evaluation of Judges and Prosecutors• Discipline of Judges and Prosecutors

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The assessment carried out in July 2014 is the following:

• Out of 141 included recommendations – beyond what was transposed by

regulations/plans/decisions/job descriptions –

6 were fully implemented

80 were partially implemented

55 were not implemented

whereby the implementation of 96 recommendations depends (partially) on law amendments.

• The new assessment based on the current status of implementation of the recommendations carriedout on February 2016 shows the following:

Out of 141 included recommendations:

9

23 are fully implemented

88 are partially implemented

40 are not implemented

The comparison of the level of implementation shows an increase in the number of recommendations that have been implemented in the last 18 months. Furthermore, the level of implementation of 101 recommendations must be considered as the same as it was considered in July 2014 (implemented, partially implemented or not implemented). The comments inserted in the last column of the table show that even if the level of implementation is the same, some improvements and developments have to be assessed positively. More than 50% of the recommendations that have the same status of implementation (101 in total) have to be considered as recommendations in process of implementation. The respective actions taken by the legislator, by the Councils or the Project are mentioned briefly in the comments of the status quo.

The other important conclusions based on the comparative analysis of the level of implementation of the recommendations in July 2014 and February 2016 can be made regarding the assessment by areas. The most significant positive achievements concern the implementation of recommendations for improvement of the organisation, functions, and structures of the Councils (under Component I), and the appointment system for judges and prosecutors. As far as Kosovo’s disciplinary system for judges and prosecutors goes, it is still not in compliance with international standards. Even the latest Law amendments pertaining to the subject, adopted on 28 May 2015, are critical. The newly adopted articles establishing statutes of limitations regarding disciplinary proceedings, and the new composition of the KPC’s Disciplinary Committee have not been well received. The first one addresses the lack of policy analysis prior to the adoption of the law amendments regarding pending disciplinary cases and the legal consequences from the implementation of the new provision to these cases. Thus, a lot of ongoing cases have to be dismissed based on this law provision. The new composition of the KPC’s Disciplinary Committee foreseen by the LKPC is not in compliance with the Constitution.

However, it is important to underline that statistics do not show the importance of the implementation or non-implementation of the Catalogue’s recommendations. Thus, the Councils have to pay attention to this assessment, and they should refer to the implementation of the respective recommendations when drafting the Annual reports and Annual Plans of the Councils.

From the Project’s perspective, the assessment of the implementation of the most of the recommendations is already included in the Project’s reports elaborated in the last few months and are analysed in the Final report.

Prioritization and follow up activities

As stated above the prioritization needs to be established by the Councils.

However, from a Rule of Law and fundamental rights perspective the following recommendations regarding legislative measures are considered a priority (highlighted in pink in the catalogue):

• Constitutional power for the Councils to adopt regulations and judicial review of regulations• Composition and structure of the Councils – the new Law amendments of the LKPC already provide a new

structure and composition of the KPC;• Legal remedies/appeal procedures against decisions of the Council – the law amendments adopted in 2015

did not address these recommendations;

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• Regarding the disciplinary liability system for judges and prosecutors, the final conclusion of theProject in this regard is that the disciplinary system for judges and prosecutors in Kosovo still needs a veryserious revision on a legislative level in order to ensure the compliance of the disciplinary system with therelevant international standards

• The appointment system is considered as another priority area with regard to sustainability. The major law amendments of the four Laws that took place in 2015 aimed at establishing a newappointment system for judges and prosecutors in Kosovo. The new challenges currently concern theinterpretation and implementation of the new law provisions, drafting and approval of new by-lawsand SOP by the Councils, adoption of a new Law on the KJA by the Assembly andharmonization of this Law with the LKJC, LC, LKPC and LSP, and so forth.

On an operational level the Project proposes the following to be dealt with priority (highlighted in green in the Catalogue):

• Capacity building of the Council/members of the Council/staff, including activities such as:o Training in legal drafting skills and development of policy options;o Drafting and approval of new By-laws following the Law amendments adopted on 28 May

2015;o Review, revision of the SOP in compliance with By-Laws Councils’ meetings -Definition of tasks

beyond attending meetings; preparation of meetings; preparation of topics of agendas bymembers

o Preparation of reports;o Supervision and guidance capacity towards staffo Elaboration of an accountability mechanism

• Career development tools and capacity, by activities:o Bylaws regarding transfer and promotion;o Harmonization of the By-laws which relate to career development;o Training monitoring and promotiono Evaluation coaching sessions

Drafted byAnita Mihailova

February 2016

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Catalogue of RecommendationsC

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Comments July 2014 Final Comments February 2016

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Composition of the KJC/KPC

It is recommend that the KJC/KPC is composed of a majority of

judges/prosecutors elected by their peers, or, at least, not less than 50% of its

composition should be judges/prosecutors elected by their peers from all levels

of the judiciary and with respect for pluralism inside the judiciary.

x x x

Const

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KJCL,

KPCL

3, 5,

10,

11,

13,

14,

15,

16,

17,

20,

22

P

Implemented: 5 out of 9 members of KPC are prosecutors. At least 9 out

of 13 members of KJC are judges. Judges and prosecutors are therefore a

majority in the respective Council.

Action Point: Article 108 (6) of the Constitution and Article 5 of KJC/KPC

Law may be considered to be amended. For both Councils not 50 % of the

members are elected by their peers.

Article 5 of the Law on the KJC was not amended in

regard with the composition aspect due to Constitutional

constraints.

Article 5 of the Law on KPC was amended in 2015 and the

recommendation was implemented for the KPC. (KPC

shall be composed of 13 members with a five year terms

and ten (10) members shall be elected from among

prosecutors).

I 2

Tasks and deputyship of chair of Councils

The tasks and responsibilities as well as deputyship of the chair of KJC/KPC should

be established by Law.

x x xKJCL,

KPCL

11,

22

N Action point: A revision of KJC/KPC Law is needed which foresees the

tasks and responsibilities as well as deputyship of the chair of KJC/KPC.

This recommendation was implemented for the KPC only

through the amendments of the Law on KPC in 2015 and

adoption of new Article 5/A.

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Chair of KPC

The chair of KPC should be separated from the function as Chief State

Prosecutors and should be elected from among the prosecutors by the KPC.

The position as chair of KPC should be a full time position.

x x KPCL

10,

11,

13

NAction point: amendment of KPC Law, foreseeing that the chair is elected

by the Councils and the position of the chair of KPC as full time position is

needed.

This recommendation is fully implemented with the new

amendment in Art. 3 par.5 of the LA-LKPC (The

Chairperson of the Council shall suspend the position of

state prosecutor and shall be entitled to return to the

service as a prosecutor of the prosecution office in which

he/she had served before being elected as Chairperson of

the Council)

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Minister of Justice as member of the Council

The Minister of Justice is ex officio member of KPC.

However, the power to discipline a prosecutor or the decisions regarding the

appointment/evaluation/transfer and promotion should be vested in an

authority or tribunal which is independent of legislature and executive, and

which is composed of serving or retired prosecutors but which may include in its

membership persons other than prosecutors, provided that such other persons

are not members of the legislature or the executive. According to international

standards the Minister of Justice should not be member of the Council. In case

the Minister of Justice is an ex officio member of the Council it should be at least

stated in the law that he/she shall not participate in sessions where the Council

decides on career development of prosecutors or in those relating to the

disciplinary liability.

x x KPCL

3, 5,

6, 10,

11,

13,

17

N Action point: A specific provision in the law should clarify the restricted

mandate of the Minister of Justice as member of the Council.

This recommendation is implemented : The Law

amendments in force on 15 July 2015 ( Art. 3 of the LA-

LKPC) removed the Minister of Justice from the

membership of the KPC.

Composition & Structure of Council

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I 5

Court Presidents/Chief Prosecutors as members of the Councils

It is recommended to stipulate explicitly by Law that Court Presidents/Chief

Prosecutors shall not be members of the Councils. In case a Court

President/Chief Prosecutor is elected member of a Council he/she should be

required to resign from such a position.

x x xKJCL;

KPCL13

NAction point: The laws would need to be revised.

This Recommendation is fully implemented (Art 3 par. 8

of the LA-LKJC provides: the Presidents of the Courts

cannot be members of the KJC). Art. 3.1.5 of LA-LKPC

provides that members of the KPC, except the Chief State

Prosecutor may not exercise at the same time the

function of Chief Prosecutor of any prosecution office.

i 6

Existence and competences of Committees

The existence and the tasks/competences of the Council's committees should

have a basis in the Law, foreseeing few permanent committees and leaving

flexibility to ad hoc committees.

Additionally it should be clearly stated that - besides the Disciplinary Committee -

no committee has decisive power; all committees have to provide the Councils

with a report and all documents providing full information on the procedure, the

collected documents and the reasons why a certain decision is recommended.

x x xKJCL,

KPCL

9, 11,

20,

22

P

Implemented: The Disciplinary Committees are established by law. Their

competence is described by law.

Action point: A revision of KJC/KPC Law is needed which establishes a

basis for the work of other permanent and ad hoc committees of the

Councils

This Recommendation is implemented through the

respective amendments of the LKJC and LKPC in 2015

with the establishment of permanent Council's

Committees.

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Composition of Committees

Basic rules on the composition of the committees should be contained in the law.

The committees of the Councils should have sufficient members to allow a broad

discussion. Contemporaneously the number of members should be sufficiently

low in order to allow a smooth work. If representatives of other professions are

members of the committees, the number of judges/prosecutors should always

prevail.

Basic rules on the replacement in case of a conflict of interest or other cases of

prevention from the duties of a member of the Committees should be

established by law in compliance with the Law on Preventing Conflict of Interest

in Exercising Public Functions.

The law should explicitly require that the chair of the Council because of the

nature of the function should not be a member of the Committees.

x x xKJCL,

KPCL

11,

14,

17,

21,

22

N Action point: A revision of KJC/KPC Law is needed foreseeing the

requirements regarding the composition of the Councils' committees.

The requirements regarding the composition of Council's

committees are not introduced by the last law

amendments of the LKJC and LKPC adopted on 28 May,

2015. The amendments of the LKPC foresee a new

composition of the KPC's Disciplinary Committee, which is

the only one decision-making Council's Committee. Thus,

the amendments of the Law are not in compliance with

the Constitution

I 8

Tasks of Committee Members

KJC/KPC is recommended to ensure that the members of the Committees are

freed from other tasks, if necessary, as to be able to fulfill the core task as

committee member to elaborate draft decisions and deliberate properly on

them.

Particularly for the Disciplinary Committee it is recommended to foresee a

rotation principle and alternate rapporteurs as to share the work load.

x x xKJCL;

KPCL

11,

22

P

Implemented: In the regulations establishing the norms for judges and

prosecutors it is foreseen that tasks in these committees need to be

taken into account.

Action point: Clearer rules would be needed in order to ensure that

committee members may carry out their tasks in the committees and

particularly that the members of the Disciplinary Committee have the

time to draft the decisions and to prepare the deliberation session

properly.

No law amendments took place for this particular

recommendation. The Councils approved some

Regulations which contain provisions aiming at improving

the procedures and the tasks of the permanent

Committees.

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Inte

rnat

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I 9

Procedure in the Committees

Some basic rules on the procedure in the Committees should be established by

law, like the quorum, casting votes or other solutions in case of equal votes, etc.

x x xKJCL,

KPCL

9, 13,

21

NAction point: The KJC/KPC Law would need to be amended.

No amendment took place for this particular

recommendation, except that the LA-LKJC in Article 11

added the following paragraph at new Article 19A Par 5:

"Composition, mandate, criteria, method and other

issues related to the judges performance assessment is

regulated by this law and regulation adopted by the

Council". The newly adopted Art 14/B, LKPC contains an

identical provision.

I 10

Councils' co-operation with Court Presidents/Chief Prosecutors

The co-operation between the Councils and the Court Presidents/Chief

Prosecutors should be better defined and strengthened.

xKJCL,

KPCL

17,

BP

P

Implemented: KJC organizes yearly a Conference of President Judges and

Supervising Judges. KPC invites Chief Prosecutors to KPC meetings as

necessary and discusses their reports on their prosecution office with

them.

Action Point: The laws should explicitly define the co-operation of the

Councils with Court Presidents/Chief Prosecutors and the KJC/KPC by-law

should provide details of this co-operation.

No amendment of the Laws was made to reflect this

recommendation. However, the Project provides the KPC

and KJC with recommendations and proposals for the

improvement of this co-operation. (QPRs, 2015)

I 11

Establishment of an inter-council co-ordination and co-operation mechanism

It is recommended to establish a proper mechanism on a permanent basis to

improve the interaction between KJC/KPC, as to avoid isolation and ensure the

unified application of similar law provisions.

This mechanism could apply the following elements:

• a member of KJC/KPC as observer in meetings of the other Council

• mandatory regular meeting between heads of secretariat/departments at the

administrative level

• joint meetings where best practice examples, questions on the application of

the law and unified application of the law could be discussed

A basic provision on the inter council co-ordination would be needed in the law.

x x xKJCL;

KPCL

17,

20

P

Implemented: A Regulation was adopted which provides rules on

decision making in joint Councils meetings. The Councils meet regularly

for joint meetings. When adopting regulations the provisions of the

respective other Council is taken regularly into consideration. Joint

trainings during the pilot training and in future continuous training will

increase awareness of implementation practices within both Councils and

their Committees.

Action point: The KJC/KPC Law should be revised. Nonetheless the

implemented steps, it needs to be stated that there is room for further

improvement of the interaction between the Councils.

No amendment was made to reflect this particular

recommendation.

I 13

Separate Secretariat for KPC

KPC should have it's own secretariat dealing with internal administrative matters,

separate from the secretariat of the Chief State Prosecutor.

x x KPCL 11N

Action point: An amendment of KPC Law, foreseeing separate

secretariats for KPC and Chief State Prosecutor Office, including basic

structure and responsibilities is needed.

Article 10 of the LA-LKPC amended Art 14 of the basic Law

by establishing a separate Councils' Secretariat. Further

support is needed for the proper implementation of the

new law provision.

I 14

Separate organigram of KPC

KPC should have a separate organigram from the Chief State Prosecution Office,

reflecting the structure based on laws and sub-laws.

x 11 NAction point: KPC needs to elaborate an organigram that is separate from

the Chief State Prosecution Office.

The new Organigram of the newly established Secretariat

is in the process of elaboration. The Organigram should

be in compliance with the new regulation on the

Secretariat (still not approved by the KPC)

15


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

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of

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I 15

Publication of the organigrams of the Councils

The organigram should be published at the website, including the interaction

with courts/prosecution offices.

x x 13 NAction point: None of the Councils have published their organisation

charts.This recommendation is implemented by the KJC.

16


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

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of

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I 16

Constitutional empowerment to issue regulations

The Constitution foresees only regulations of the government. Also the power of

the Constitutional Court is restricted to the review of the constitutionality of

government's regulations. The Councils' power to issue regulations and the

power of the Constitutional Court to review such regulations regarding the

constitutionality and legality should be explicitly foreseen by constitutional

provisions.

x x x Const

RoL,

10,

11,

17

NAction point: A constitutional review would be needed. No Constitutional amendments were made.

I 17

Types of decisions of the Councils

In accordance with the Rule of Law Principle it is recommended to refer in the

law as well as in practice exactly to defined types of normative acts.

Regularly regulations are general legal provisions issued by administrative

authorities and directed at persons subject to the law. The general constitutional

empowerment in this case relates only to implementing regulations for the

purpose of specifying general legal provisions. Regulations which amend or

supplement the law are generally not allowed or would require express

constitutional empowerment. Decisions are regularly administrative instruments

to execute the law which are directed at one or more individually specified

persons. Instructions may be administrative regulations (general instructions or

circulars) or administrative decisions directed to one or more individually

specified persons.

An amendment to a regulation should also be called regulation and not decision,

etc.

x x x Law RoLN

Action point: The Law on Normative Acts was not yet adopted. In

practice the Councils do not use unified terms for the normative acts

adopted by them.

This Recommendation is not implemented. Both Councils

still need capacity building in drafting of by-laws and

other types of Councils' decisions.

I 18

Publication of decision of the Councils

The law should explicitly determine where decision of the Councils need to be

published.

It is recommended that the decision of the Councils - as a rule, if not otherwise

provided by law - should be published.

x x Law

RoL,

11,

13

P

Implemented: KJC publishes at it's website regulations, decisions,

instructions. Also KPC published it's legal acts on the website of the Chief

State Prosecution Office.

Action point: It is recommended to foresee search functions, to explicitly

show the date of publication, to publish consolidated versions at the

website in order to facilitate the tracking of published acts. KPC is

recommended to run a separate website from that of the Chief State

Prosecution Office.

No amendments of the Laws were made to reflect this

particular recommendation. Both Councils need support

for continuing the work of drafting rules on publication of

Councils' decisions

I 19

Entry into force of legal acts

The Rule of Law Principle requires legal acts to enter into force only upon

publication (legal acts with general effect) or upon receipt of the decision by the

addressee (decisions). The Councils are strongly recommended to refer in their

regulations and decisions to the date of publication as date when the respective

act enters into force and to state on the document explicitly when it was

published.

x x x LawRoL,

11

P

Implemented: Sometimes the Councils refer to the date of

publication/receipt as date of entry into force.

Action point: The entry into force should be clarified in a general manner

by law and the Councils should refer to the date of publication/receipt as

date of entry into force.


recommendation. A uniform practice needs to be

established by the Councils.

17


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

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of

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n



I 20

Councils' task in policy development

The law should explicitly entitle the Councils to be involved in the law making

process by delivering policy recommendations and comments to draft laws in the

justice system.

The Councils are recommended to be more active in the area of policy

development in the justice sector.

x x xKJCL,

KPCL

11,

17

P

Implemented: The Councils recently have taken a more active role in the

policy decision making in the justice sector.

Action point: A revision of KJC/KPC Law is needed foreseeing the right of

the Councils to be involved in law making processes regarding justice

laws.

Both Council have increased their capacity in policy

decisions and elaboration of Concept documents

supported by the Project. The Councils were provided

with Project documents containing policy analyses and

policy options. Trainings were delivered by the Project in

2015

I 21

Power of Councils regarding (re)appointment, transfer and promotion,

evaluation and discipline

All decision regarding (re)appointment, transfer and promotion as well as

evaluation and discipline shall be taken by the Councils.

x x x

KJCL;

KPCL;

KJIL/J

AL

3, 5,

11,

10,

13,

14,

20

P

Implemented: The laws - generally - assign the power to propose

candidates for (re)appointment, transfer and promotion to the Councils.

Also evaluation and disciplinary liability falls into the competence of the

Councils.

Action point: Regarding the competence in the area of appointment

(admitting the candidates to the initial training) the laws need to be

amended.

With the entry into force of the amended Laws on the KJC

and KPC, Law on Courts and Law on state Prosecutor on

15 July 2015, and with the enactment of the KPC

Regulation on the Recruitment, Exam, Appointment and

Reappointment of State Prosecutors in December 2015,

the Recommendation is fully satisfied with regard to the

KPC and also to the KJC as its draft Regulation on the

same matter will have to respect the new Law provisions.

II &

III22

Transparency of process of appointment, transfer, promotion, evaluation and

disciplinary liability

In order to guarantee that the system for the recruitment, selection and

appointment, transfer and promotion, evaluation and discipline of

judges/prosecutors is independent, fair, open and transparent, the body must

publish the competences against which it determines whether any particular

candidate has sufficient merit and all sources of information that it will use for

the assessment.

x x xKJCL,

KPCL

3, 5,

9, 10,

11,

13,

14,

20,

21

P

Implemented: Both Councils have published the Regulation on the

Process of Recruitment, Appointment and Reappointment as well as such

on the Evaluation, which include all indicators and sources of information

which are used in the appointment/evaluation process.

The KJC/KPC law contain the definition of the misconduct.

Action point: A basic requirement regarding the transparency should be

established by law, sources of information should be at least

demonstratively listed in the law and more detailed rules for the transfer

and promotion process need to be established by laws. The definitions

on the misconducts are not sufficiently clear.


recommendation with the entry into force of the

amended Laws on the KJC and KPC in July 2015.

However, with the enactment of the KPC Regulation on

the Recruitment, Exam, Appointment and

Reappointment of State Prosecutors in December 2015

the Recommendation is satisfied with regard to the KPC

listing the requirements for the selection and

appointment as indicated by Art. 18 of the LKPC in

combination with Artt. 8, 9, 14, 17, 18, 21, and 22 of the

KPC mentioned Regulation. With regard to the KJC draft

Regulation on the same matter, Artt. 7, 8, 13, 14, 15, 17,

18, 19, 22, and 23 of the present draft appear to be

sufficient to satisfy the requirement.

18


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

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II &

III23

Confidentiality of the deliberation in decisions regarding appointment, transfer,

promotion, evaluation and disciplinary procedure

Adequate procedures should be in place to guarantee the confidentiality of the

deliberations regarding appointment, transfer, promotion, evaluation and

disciplinary liability. It is recommended that records and information obtained

and maintained during the process shall be confidential and shall not be

disclosed. The identity of the individuals who provided information concerning

judges/prosecutors shall be confidential and shall not be disclosed. However, the

concerned judge/prosecutor should have access to all information included in

the file.

x x xKJCL,

KPCL

9, 10,

21

P

Implemented: Both Regulations on the Process of Recruitment and (Re)-

Appointment as well as those on Evaluation and Disciplinary Procedures

contain rules on the confidentiality of the respective process. KPC's

Regulation exempts the evaluated prosecutor.

Action point: A basic requirement regarding the confidentiality should be

established by law and more detailed rules for the confidentiality of the

transfer and promotion process need to be established by by-laws. The

exception of the evaluated prosecutor is not foreseen in the KPC

Regulation on Evaluation.





the Recruitment, Exam, Appointment and Reappointment

of State Prosecutors on 1 December 2015 the Regulation

reiterates the need for insuring and requests the highest

confidentiality of the recruitment process according to

Artt. 5.7, 7.3, 11, 14 of the KPC mentioned Regulation.

With regard to the KJC the draft Regulation on the same

matter, Artt. 6, 12, 19, 28, and 30 of the present draft are

of the same tenure and the KJC draft appears to offer

more guarantees than the KPC one.

II &

III24

Documentation of the appointment, transfer and promotion, evaluation and

disciplinary procedure

It is recommended to create sufficient record in relation to each applicant to

ensure that there is a verifiably independent, open, fair and transparent process

and to guarantee the effectiveness of the independent complaints or challenge

process to which any unsuccessful applicant is entitled if he or she believes that

s/he was unfairly treated in the appointment/transfer/

promotion/evaluation/disciplinary process. Any information used during the

process has to be documented in the respective files.

x x xKJCL,

KPCL

9, 10,

11,

21

P

Implemented: Both Regulations on the Process of Recruitment and (Re)-

Appointment contain rules on the record keeping of all steps in the

appointment process. Furthermore new templates are used which assist

in keeping these records. Also the Regulations on Evaluation and

Disciplinary Procedures contain respective requirements.

Action point: A basic requirement regarding the documentation should

be established by law.





the Recruitment, Exam, Appointment and Reappointment

of State Prosecutors in December 2015 the

Recommendation is satisfied based on the content of

Artt. 8.8, 16, and 27of the KPC mentioned Regulation.

With regard to the KJC draft Regulation on the same

matter, Artt. 7.6, 17, 18, 27, and 30 of the present draft

are of the same tenure and the KJC draft appears to

satisfy the Recommendation.

II &

III25

Confidentiality policy for keeping case files/archives

The Councils are recommended to revise the confidentiality policy regarding the

appointment, evaluation and disciplinary process in order to ensure that all

documents filed in regard to each candidate are accessible to all members of the

competent Committees and KJC/KPC, including admitted supporting staff, and at

the same time no other person has access to the files.

Furthermore, the Councils are recommended to ensure that the files are deleted

after an established period of time which should be separately defined for

appointment, evaluation and discipline and should be in accordance with the Law

on Data Protection.

x x BP P

Implemented: Both Councils have established a practice in regard to

confidentiality for keeping of case files and the archives.

Action point: A comprehensive policy seems still needed to be adopted

and implemented.

No action has been taken to fully implement this

recommendation. However, the KJC has started a

procedure for drafting rules for case files keeping and

archiving. Further support in this direction is still needed.

19


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

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of

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I 26

Access of public and media to information & Public Relations

The external communication and public relations should be increased, notably

the level of public awareness of laws, rights and mechanisms available to enforce

rights should be enhanced.

Minutes of Councils' meetings should be published taking into account data

protection rules.

An establishment of a Public Relations Committee and/or the designation of a

trained spokes person is recommended.

The elaboration of guidelines regarding disclosure of information is

recommended in order to enhance active and comprehensive communication

between the Councils and the public.

Specific training, well coordinated with the training institution, on public relation

issues is needed for Council members, spokespersons and supporting staff.

x x xKJCL,

KPCL

6, 9,

11,

13,

14,

15,

20

N

Action point: A policy on access of public and media to Councils' and

court's/prosecution's information needs to be elaborated and legal

framework established. A public relation strategy should also be part of

the Strategic Plan.

The KJC has adopted its Communication Strategy and

Regulation on the Office of Communication/ Coordination

of the KJC,while the KPC is in the process of adoption of

the Communication Strategy and the Regulation. The

Project provided both Councils with analyses and

recommendations in this regard in 2015.

I 27

Human resource planning and strategy

Proper attention should be paid to the process of planning of the human

resources needs.

In particular the following factors shall be considered:

1) clear rules/gathering of information on retirement and other cases of end of

mandates

2) a long-term policy on the opening of new judges'/prosecutor’s positions.

This would also have the effect of better planning of training needs, especially on

a long term.

x x BPP

Implemented: Both Councils have gathered the relevant data as to

overview the retirement of judges and prosecutors.

Action point: An improved human resource planning and strategy is

needed.

Both Councils have their Draft Human Resource

Strategies. However, additional support is needed for

improvement of the draft strategies, analysis and

consideration of all relevant factors, adoption and

implementation of the HR Strategies.

20


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

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the

r

Stat

us

of

Im-

ple

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nta

tio

n



I 28

Establishment of a co-ordination and co-operation mechanism between the

Councils and the training institution

Mechanism for co-ordination and co-operation with KJI regarding training needs

analysis, co-ordination regarding the selection of trainers, the training curricula

and the evaluation of trainings need to be further developed.

The members of the Councils should be represented in the KJI Board.

KJI should have a central role in training of judges and prosecutors and

supporting staff. Article 40(2) of KPC Law might need to be changed as to avoid

the duplication of training institutions.

It is recommended to establish a Committee or any other adequate structure

dealing with all issues of training of judges, prosecutors and supporting staff and

the co-ordination with the training institution.

A Training Committee could have the following tasks:

• ensuring liaison with the training institution

• establishing criteria for the selection of mentoring judges/prosecutors

• guiding and supervising mentoring judges and prosecutors

• ensuring quality management of mentorships

• ensuring training needs analysis in co-ordination with KJI

• review of training curricula

• preparing the approval of requests for the authorisation of trainings and

recommending to the Councils a respective decision

• general criteria for training attendance

• overviewing training registry

• elaboration of templates and standard operational procedures.

x x xKJCL,

KPCL

11,

14

P

Implemented: KJI Law establishes that the KPC/KJC is represented in the

Board. Within the Councils training units are established. However their

capacity needs to be enhanced.

Action points: Clearer provisions regarding the respective competences

of the Councils and the training institution are needed in the 4 justice

laws and in the law governing the functioning of the training institution.

The co-ordination and co-operation between the Councils and the

training institution should be enhanced and standard operational

procedures developed. The Councils might consider to establish a

Training Committee with specific tasks.

The members of the Councils in KJI Board should in fact represent the

Councils and should be bound to the Council's policies and decisions. It

should be considered not to delegate the president/chair of the Councils

to the Board (as foreseen now in KJI Law) but a 'specialized' member of

the respective Council (for examample the chair of a future Training

Committee).

No amendment was made to reflect this

recommendation. The Project elaborated comments on

the Draft KJA Law in 2015. Further support is needed in

improvement of the final version of the LKJA and

harmonization of this Law with the last law amendments

of the LKJC, LKPC, LC, LSP.

Training as Task of the Councils

21


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

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of

Im-

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tio

n



II &

III29

Role of the Councils regarding initial training

The law should make clear the role of the Councils in determining the basic frame

for initial training and the training policy. KJC/KPC should play a leading role in

determining the frame for initial training and in the training needs assessment.

The government's responsibility for judicial training should be restricted to the

provision of adequate resources to ensure that appropriate judicial training can

be provided.

x x x

KJCL,

KPCL,

KJIL/J

AL

11,

13,

14

P

Implemented: Article 40 KPC Law and Article 50 KJC Law already foresee

that the Councils shall determine policies, standards and directives by

which the training of judges/prosecutors are regulated. Both Councils

have put forward a policy recommendation in order to clarify the role of

the Councils, to introduce a provision regarding the basic frame for initial

training . The proposed approach would foresee theoretical and practical

aspects during the initial training.

Action point: Articles 17/18 KJC/KPC Law and 26 Law on Courts and

Article 19 SP Law as well as KJI Law need to be revised. Based on law

amendments also the Regulations need to be reviewed.

The law amendments of the LKJC and LKPC adopted on 28

May 2015 provide a 12-month mandatory Initial training.

The Project delivered to the Council a Concept document

on the training of judges and prosecutors in 2015 aimed

at determining the policies and standards for initial and

contentious training. Further support is needed for

development of the policies and standards in accordance

with the law amendments and the new law on the KJA.

II &

III30

Content of initial training

Initial training should comprise both theoretical and practical aspects and cover

all fields of law relevant to working at a court/prosecution office, whilst providing

other skills and knowledge relevant to the judicial/prosecutorial activity (such as

ethics, case management, administration of courts, information technologies,

foreign languages, social sciences, social awareness, alternative dispute

resolution and extensive understanding of different subjects reflecting the

complexity of life in society). This should be stated in the law.

x x x

KJCL,

KPCL,

KJIL/J

AL

6, 11,

13,

14

P

Implemented: Both Councils have put forward a policy recommendation

to determine the content of the initial training.

Action point: KJC/KPC Law and KJI Law need to be revised. Based on law


The law amendments of the LKJC and LKPC introduced in

2015 foresee a 12-month Initial training. However, the

content of initial training needs to be clarified by the

training institution. The draft Law on Kosovo Judicial

Academy (LKJA) is still not approved by the Assembly.

Harmonization of the law amendments of the LKJC, LKPC

and the new LKJA is recommended.

22


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

Stat

us

of

Im-

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nta

tio

n



II &

III31

Designation of trainers/specialists in the area of

appointment/evaluation/discipline

KJC/KPC are recommended to designate among the judges/prosecutors with

experience as chair/member of an Appointment/Evaluation/Disciplinary

Committee and possibly also as trainer as ‘recruitment/evaluation/ disciplinary

specialist’. The tasks of the ‘specialist’ could be the following:

• Deliver training in the initial training program or support a respective trainer of

KJI in the respective area

• Deliver training every time needed for new members of

Appointment/Reconsideration/Evaluation/Disciplinary Committees

• Ensures that relevant materials, Manuals, templates, forms, etc. are updated

constantly

• Ensures that the KPC/KJC is informed on upcoming questions and the KPC/KJC

is provided with the relevant information to take necessary decisions

• Ensure that experience and findings regarding needs of amendments to are

brought to the attention of the Councils.

• Attend trainings on training methods and techniques

The Councils are recommended that all questions related to

appointment/evaluation/discipline are regularly brought to the attention of this

specialist

x x11,

21

P

Implemented: The Councils have designated trainers/specialists for

almost all areas. Those have participated actively in the pilot training and

have been indicated to KJI as possible trainers.

Action point: KJC still needs to designate specialists/trainers in the area

of appointment and evaluation. The specialists/trainers still need to be

considered and 'used'.

This recommendation is partially implemented. Both

Council still need to use adequately the capacity of the

members of the Councils, supporting staff, judges and

prosecutors, trained by the Project and other

international programs and specialied in the area of

appointment, evaluation and discipline.

23


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

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us

of

Im-

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nta

tio

n



II.

&

III.

32

“Building Best Practice”

It is recommended that

a) a designated member of the respective Committee takes notes of problematic

issue raised during meetings and procedures (regarding the

interpretation/application of the laws/by laws or on how to assess certain

documents/situations/facts, or on delimitation between ethics and disciplinary

relevant behaviour, etc.)

b) specifically for evaluation: Court Presidents/Chief Prosecutors take notes of

issues arising in the context of evaluations or performance coaching

c) workshops are held of members of the respective Committee (and in regard to

evaluation with the Court Presidents/Chief Prosecutors; additionally for all areas

eventually jointly with members of other Council, experts, etc.) on an annual

basis in order to discuss these issues

d) Crucial questions might be brought to the attention of the Councils and

guidance might be requested

e) the conclusions/findings should be written down in a continuously updated

'General Guideline/Manual'

f) the General Guidelines/Manual should be made public and accessible to all

judges/prosecutors and (partially) to the public

x x

9, 11,

13,

21

P

Implemented: The ratio behind this recommendation was explained

during the pilot training.

Action point: The recommendation will need to be implemented.

The implementation of this recommendation depends on

the development of the Councils and improvement of the

performance of the respective Councils' Committees. The

recommendation is not implemented.

II &

III33

Course on appointment/evaluation/disciplinary liability within initial training

It is recommended to

• introduce in the curricula of the initial training program in the frame of

instructions on the judicial organization training on rules and practices on

appointment, performance evaluation and disciplinary issues.

• to select those as trainers who were indicated by the Councils as trainers for

the pilot training organized by the project.

Main content of the initial training curriculum should refer to

• International standards and principles regarding

appointment/evaluation/disciplinary liability

• main procedural and material aspects of the Kosovo legal framework relating to

the three areas

x x6, 11,

13P

Implemented: KJI has accepted the recommendation and is in process of

adopting respective curricula.

Action point: The curricula need to be adopted and implemented.

No changes have occured for the implementation of this

recommendation

24


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II &

III34

Continuous training on appointment/evaluation/discipline

KJI in co-operation with KJC/KPC is recommended to

• deliver a tailored training every time a

Appointment/Reconsideration/Evaluation/ Disciplinary Committees is newly

appointed and/or a new Council is elected.

• give a face to face short training to new members appointed or elected in case

of termination of the assignment of individual members

• in case of evaluation, include in all trainings also the Presidents of Courts/ Chief

Prosecutors and eventually deliver specific training to Court's Presidents/Chief

Prosecutors

• deliver a training programme for all judges/prosecutors on a regular basis and

particularly each time relevant changes in the legal framework for evaluation and

disciplinary liability is introduced

• use the training material provided and suggested by the Project and

continuously update the training material.

x x6, 13,

21P

Implemented: KJI and both Councils have accepted the recommendation

and plan to provide the training.

Action point: The training will have to be provided every time needed.

This recommendation is not implemented. After entering

into force of the new Law on the KJA a coordination

mechanism between the KJC/KPC and KJA in regard to

the contentious training needs to be adopted.

II &

III35

Capacity Building for Legal Secretaries and supporting staff

The Councils are recommended to boost the capacity building of the staff in

order to prepare the officers to deliver a more responsible, professional, efficient

assistance to the functioning of the Councils. Particular attention should be paid

to the capacity building of the Legal Secretaries of the Committees and the heads

of units/offices of the Secretariat/PPRU, in order to empower him/her to be able

to assist the Committees more efficiently:

• in establishing a proper documentation of all decisions, including indexing,

• in all actions related to file keeping and communication with the parties,

• in ensuring unified application of the law,

• in enhancing the legal research capacity.

x x9, 13,

14P

Implemented: The Legal Secretaries and supporting staff participated in

the pilot trainings and were more actively involved in the elaboration of

the standard operational procedures.

Action point: Legal Secretaries to the Committees and other supporting

staff need further capacity building.

This recommendation is implemented partially. The

Project delivered additional trainings in 2015. However,

the Law amendments in 2015, the new Regulations and

the amendments of some of the Regulations in force,

require the respective amendments of the training

programs and delivering of training based on the TNA.

25


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Recommendation KJC

KP

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II &

III36

Joint training of Committee Members and staff

The staff of the Councils shall support the Committees and the Council efficiently.

For this reason it is appropriate to convene to the staff members’ knowledge of

the recruitment/evaluation/disciplinary system and a full understanding of their

role in the broad context of the process. Staff needs to have a vision of the

finality and the use of the documents they have to be aware of the purpose and

structure of the reports to be established. This would facilitate developing a team

spirit and reciprocal understanding. For this reason, identified officers should be

part of the target group of the continuous training also in the future.

x x 9, 14 P

Implemented: The pilot training was carried out partially jointly.

Action point: Also in future the training should be (partially) carried out

jointly.

The Project has delivered joint trainings in 2015 following

this recommendations. Further implementation is

needed.

II &

III37

Right and obligation to attend continuous training

The law should make clear that every judge/prosecutor, of whatever rank, needs

to keep up-to-date with developments and therefore training should be made

available to all judges/prosecutors, and all judges/prosecutors should be

required to receive continuing judicial training.

The attendance to the training should be taken into account in the evaluation.

x x x

LC,

SP

Law

3, 4,

11,

14,

16

NAction point: The laws should include a right and obligation to attend

trainings.

No amendments of the Laws took place for this

recommendation. However, the Regulations on

evaluation of the performance provide assessment of the

participations in the trainings.

II &

III38

Continuous training promotion and monitoring

Continuous training at all levels of the judiciary/prosecution system should be

promoted and the culture of continuing training should be disseminated among

members of the judiciary/prosecution system, making available to

judges/prosecutors the financial resources, the time and other means necessary

for continuous training. A system should be put in place that allows the Councils

to monitor the training activities of each judge/prosecutor and ensures that the

training is attended by those who really need it.

x x11,

14P

Implemented: KPC/KJC have established training offices where all

training activities for prosecutors/judges are coordinated.

Action point: A mechanism of continuous training needs assessment on

one hand and on approval of training attendance based on real needs

still to be established.

After the establishment of a Training Office within the

PPRU, no further steps have been taken for the

coordination of training activities.

26


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Recommendation KJC

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II

&

III

39

Purpose of evaluation of the justice system

The purpose of the evaluation of the judicial/prosecution system as such should

be established by law. The purpose of evaluation of the justice system could refer

to the following:

a) to build up the trust and confidence of the public into the system

b) improving the performance of the justice system

c) increasing the quality and quantity of the system

d) establishing consistent “bench marks” for the quality and quantity of system

e) informing KJC/KPC decisions in relation to human resources, training needs

and career development

f) informing KJC/KPC decisions in relation to budget issues

g) monitoring the performance in order to allow long hand planning and

management

x x xKJCL,

KPCL

9, 10,

11,

21

N Action point: The KJC/KPC Law will need to be revised.

A mechanism for the evaluation of the judicial and

prosecutorial system is not in place. No provisions are

introduced in the amended laws on KJC, LC, KPC and SP.

I 40

Data collection and quality control in justice system

It is recommended that statistical data are collected by courts/prosecution

offices and sent to the Councils. Statistical data should be processed

electronically. The data collected should refer to each court/prosecution office,

and additionally to individual judges/prosecutors.

The publication of statistical data concerning pending and past cases in each

court/prosecution office is recommended in order to enhance transparency of

the situation of workloads. Appropriate forms should be studied for the release

of even reserved information to researchers and to the judiciary, in order to

allow monitor the improvements of the system.

The Councils should perform a constant monitoring process. This monitoring

should help to identify shortcomings and needs regarding the organisation of the

courts/prosecution offices or allocation of human and material resources.

Smooth co-operation should take place among all actors as to the interpretation

and dissemination of data.

The law should contain a general rule on the power of the Councils to collect the

data and to ensure quality control.

x x xKJCL,

KPCL9, 13 P

Implemented: Both Councils collect data from Courts/Prosecution Offices

and data relating to the cases assigned to the single judges/prosecutors.

Since midst/end of 2013 the data are processed electronically and

contain relevant information regarding all courts/prosecution offices as

well as the individual judges/prosecutors. The electronic system of data

collection in KPC was adapted to the new Criminal Procedure Code.

Action point: KJC/KPC Law should be amended in order to ensure a

proper basis for the task of the Councils to collect and process data. A

comprehensive quality control mechanism should be implemented and

the data collection mechanism continuously improved.

The Law on the KPS provides legal base for gathering of

statistic data: art. 4 1.13. foresees providing and

publishing information and statistical data on the

prosecution system. No quality control mechanism is in

place.

Evaluation of the Justice System

27


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Recommendation KJC

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II

&

III

41

Evaluation of the justice/prosecutorial system

The quality of justice should be measured by objective data, such as the

conditions of access to the justice and the way in which the public is received

within the courts/prosecution, the ease with which available procedures are

implemented and the timeframes in which cases are determined and decisions

are enforced.

Additionally, a more subjective appreciation of the value of the decisions given

and the way these decisions are perceived by the general public should be

assessed.

It should take into account information of a more political nature, such as the

portion of the State budget allocated to justice and the way in which the

independence of the judiciary/prosecution system is perceived by other branches

of the government.

The evaluation should take into account the even wider context, i.e. in the

interactions of justice with other variables (judges and lawyers, justice and police,

case law and legislation, etc.), as most malfunctions of the justice system derive

from lack of coordination between several actors.

Furthermore the interaction between the quality of justice and the presence of

adequate infra-structures and support personnel should be considered. "Quality"

of justice should not be understood as a synonym for mere "productivity" of the

judicial/prosecutorial system; a qualitative approach should address rather the

ability of the system to match the demand of justice in conformity with the

general goals of the legal system, of which speed of procedures is only one

element.

x x 9, 11 P

Implemented: Both Councils carry out an evaluation of the work of the

councils on an annual basis and report on it in the Annual Report. In

March 2014 the PPRU has elaborated a very detailed and analytical

report regarding the implementation of the Action Plan on Increasing the

Effectiveness of the Prosecutorial System to fight against organized crime

and corruption.

Action points: So far comprehensive reports on the judicial/prosecutorial

systems were not elaborated.

The analytical part of the reports elaborated by the KJC,

CPRU, KPC, PPRU, Secretariats is improved in the last

period of time. The reports still need to be more

comprehensive and better structured. The conclusions,

recommendations and proposals of the reports have to

reflect accordingly the policy, decisions and plans of the

Councils

28


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I 42

Role of the Councils in budget governance

Without prejudice to existing responsibilities of the government for proposing

the judicial budget and of parliament for adopting the budget, it would be

advisable for the Councils to present to the government the budgetary needs of

the justice system in order to facilitate informed decision making. The Councils

should also be heard by the parliament in the deliberations on the budget. The

Councils may play a role also in the distribution of the budget within the

judiciary/prosecution system.

It is recommended to consider a delegation of the power to administer the

budget of ODC to ODC Secretariat and to review the approved internal financial

delegations of the KJC/KPC as a Budget Organisation.

x x xKJCL;

KPCL

11,

13

P

Implemented: KJC/KPC Law empower the Councils to prepare the annual

operating budget of the Council and the courts/prosecution offices. If the

Minister of Finance and Economy submits a budget from that proposed

by the Council, he/she has also to submit the Councils' proposal.

Action point: The Councils should also have the right to be heard by the

parliament. This would need to be stated by law. A delegation of power

to administer the budget should be considered.

LA-LKJC, Art. 5 amends Art 6 par 3 of the basic Law with

the following provisions: 'Proposes to the Kosovo

Assembly the Council’s proposed budget for the

operational and personnel expenses of the Council and

the courts"; Also Art 9 of the LA-LKJC amends Art 15 par

1 of the Basic Law with the following provision: 'The

Council shall prepare its annual budget proposal and

forward the said budget proposal to the Assembly of the

Republic of Kosovo for adoption. This recommendation

partially solves the situation.'

I 43

Support to the Annual Budget Planning Process

It is recommended to improve the internally circulated budget regulations and

internal timetable to the Courts/Prosecution Offices, Departments and Units on

which the Finance Director relies for detailed budget information and which is

then consolidated into the KJC/KPC budget by the KJC Secretariat respectively

administration of KPC.

Moreover the standard operating procedures regarding specific aspects of the

documentation required as part of the budget setting process, for example -

setting goals, objectives and performance indicators should be developed.

x x 11 NAction point: Review of internal budget related rules and timetables,

training to support specific aspects of documentation

The Project has delivered a Manual and ensured four

Workshops in 2015 aiming at improving the budgeting of

judiciary and capacity building of the persons in charge

with the budgeting in the Councils, Courts and

Prosecution offices. Further steps for the proper

implementation of the Manual have to be done by the

Councils.

I 44

Reporting & Monitoring

It is recommended to establish a mechanism to ensure constant budget

monitoring and to increase the capacity for quarterly and annual financial

reporting. The content of the presentation of the budget as well as the process of

the presentation of financial reports to the KJC/KPC Budget & Finance Committee

should be improved. It is recommended to increase the awareness and

importance of audit report content, material issues arising for Board Level review

and appropriate action and follow up based on audit findings (KJC/KPC report

from Office of Auditor General and Internal Auditors Report)

x x 11 NAction point: In year quarterly and annual financial reporting and

monitoring of the KJC/KPC budget

The Manual elaborated by the Project and submitted t

the KJC and KPC in 2015 contains clear proposals for

financial reporting and monitoring of the implementation

of the budget.

Budget Issues

29


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I 45

Financial Management Capacity Building of KJC/KPC & Secretariat to Increase

Transparency and Accountability

It is recommended to increase the awareness and understanding of KJC/KPC

members and members of the KJC/KPC Budget & Finance Committee regarding

their responsibilities and accountabilities for the setting, approval and

monitoring and oversight of the KJC/KPC budget. The Budget & Finance

Committees need to improve the forward planning of KJC/KPC standing agenda

items with specific focus on the timetables for the annual budget setting process,

mid year revision of the budget, presentation of outturn figures and

consideration & response to the findings of internal and external audit reports.

x x 11 NAction Point: Further capacity building for KJC's/KPC's member/Budget &

Finance Committee member is needed.

The training materials of the Workshops organised by the

Project in 2015 for the KJC's /KPC's members and

members of their Budget Committees are submitted to

the Councils for organisation of trainings when needed.

I 46

Support for Heads of Unit / Non Financial Managers who have budget

responsibilities in KJC/KPC and to Finance Officers

It is recommended to ensure capacity building for non financial managers in

support of that part of the role which is expected to provide financial input to the

budget planning, execution and monitoring process. Furthermore capacity

building is needed for finance officers in courts/prosecution offices with regard

to their role.

x x 11 NAction point: Training in budget for non financial managers and finance

officers in the courts/prosecution offices.

The training materials of the Workshops organised by the

Project in 2015 for the staff members in charge with the

budgeting are submitted to the Councils for organisation

of trainings when needed.

30


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Recommendation KJC

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I 47

Structure and Content of the Strategic Plan

The following key challenges should be contained in the Strategic Plan:

• Institutional Overview and Development

• Legal Framework and Reform

• Human Resource Development

• Infrastructure and Information Technology

• Access to Justice

Furthermore the following issues should be addressed:

• Vision and Strategic Direction of KJC/KPC, including values (people, fairness,

independence, integrity, professionalism, respect, credibility),

• mission and strategic goals (strengthening the legal framework, strengthening

the institutional aspects, enhancing the human resource capacity, developing the

necessary infrastructure, increase the access to justice, transparency and

communication),

• assumptions and risks,

• indicators (in order to measure the progress in the implementation of the

strategic plan)

x x BP Y

Implemented: A draft Strategic Plan was elaborated by both Councils.

Action point: The draft Strategic Plans are in process of being adopted by

the Councils.

The KJC approved a five year Strategic Plan and Action

Plan for the implementation of the Strategic Plan in 2014.

The KPC approved a three year Strategic Plan, elaborated

with the support of the Project, on 12.02.2016

I 48

Action Plan for the Implementation of the Strategic Plan

Any Strategic Plan needs to include an Action Plan for the implementation of the

KJC/KPC Strategic Plan with clear timing, budget and responsible persons to

implement it.

x x BP Y

Implemented: KJC has already elaborated an Action Plan.

Action point: KJC is in process of adopting the Strategic Plan together

with the Action Plan. KPC still needs to elaborate an Action Plan for the

Implementation of the Strategic Plan and to adopt it.

This recommendation is implemented by the KJC. The

Project elaborated a draft KPC's Action Plan.

I 49

Capacity Building and Establishment of a Strategic Planning Office

It is evident that actual capacities in the field of policy and planning development

are limited. It is strongly recommended to ensure capacity building in the sector

of strategic planning and management.

There is no structure within the KJC/KPC with clear responsibilities for

coordination, planning and policy research. Therefore, the KJC/KPC management

should consider the establishment of the Strategic Planning Office within KJC/KPC

or at least to designate officers for such activity.

x x BP N

Action point: A structure within KJC/KPS with strategic planning

responsibilities needs to be established and a clarification is needed of

the respective responsibilities for the co-ordination, planning and policy

development.

The KJC has implemented this recommendation. The KPC

has accepted the recommendation. However, the newly

created Council is still in the process of deciding on the

Secretariat and its units.

I 50

Establishment of a Monitoring Working Group

It is recommended to establish a Working Group or a Committee for the

monitoring of the implementation of the KJC/KPC Strategic Plan.

x x BP NAction point: A structure within KJC/KPC with strategic planning

monitoring functions needs still to be established.

The persons appointed in the KJC's Secretariat have the

responsibilities for the regular monitoring of the

implementation of the Strategic Plan.

Strategic Planning

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Recommendation KJC

KP

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I 51

Functional Review

During the implementation and after the implementation of the KJC/KPC

Strategic Plan it is recommended to conduct a functional review of the

functionality of the new court/prosecution structure, the entire

judicial/prosecutorial system as well as of the organisation and the functioning of

KJC/KPC.

x x BP NAction point: The Strategic Plan first of all needs to be implemented and

reviews carried out.

The review and assessment of the functionality of the

new Court/ Prosecution structure is an on-going process.

Both Council have to initiate and carry out a

comprehensive analysis and to take measures for the

development of the new structure accordingly.

I 52

Strategic Planning (Organisational) and Financial Planning

It is recommended to provide support to the Director of Finance & Budget (or

nominated KJC/KPC Strategic Planning Lead) in developing the financial sections

of the KJC Strategic Plan 2014-2019 and KPC Strategic Plan 2014-2016 – this could

include:

• Strategic- level scenario planning to identify and anticipate significant medium

term KJC/KPC operational developments such as the impact of capital schemes or

re-organisation. Facilitate the outline costing of these for the medium term.

• Support to draft the high level financial components of the Strategic Plan

including the link to KJC/KPC strategic goals, objectives, activities and measurable

outcomes

• From the identification of significant medium term issues, arising from the

Strategic Planning process and the KJC’s/KPC's Declaration of Priorities 2014-

2016, look at ways of more clearly linking this to the annual budget planning

exercises for each fiscal year.

x x BP N Action point: review of the financial section of the Strategic Plan

The KJC's Strategic Plan and Action Plan is approved. The

Financial section of the Strategic Plan is reviewed and

elaborated accordingly. The KPC's Strategic Plan

approved on 12 February 2015 is in compliance with the

last law amendments and Project documents elaborated

for supporting the budgeting of the system in 2015

(planning, reporting, level of decentralisation, etc.)

32


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II

&

III

53

Power of Councils regarding (re)appointment, transfer and promotion

All decision regarding (re)appointment, transfer and promotion shall be taken by

the Councils.

x x x

KJCL;

KPCL;

KJIL/J

AL

3, 5,

10,

11,

13,

16,

17,

20

P

Implemented: The laws - generally - assign the power to propose

candidates for (re)appointment, transfer and promotion to the Councils.

Action point: The competence to admit the candidates to the initial -

mandatory - training will need to be clearly assigned to the Councils. The

law amendments are still under way.

The Recommendation is implemented - The LKJC and

LKPC were amended accordingly: Art 4.1.19, LKJC

provides that the KJC “in cooperation with the Institute,

organizes the preparatory examination for the

qualification of judge candidates ), and adds new

paragraphs vesting the competence of the appointment

process to the KJC in Art 4. 1.28: “issuing of regulation on

determining the terms and procedures for organizing the

exam for candidates for judges"; par. 1.29: "announcing

and organizing the exam for judges ). LKPC is amended in

the same direction -Art.4.1.2.8, Art.4.1.31. LKPC.

II

&

III

54

No competence of KJC to establish appointment criteria by a regulation

Article 26(1) Law on Courts seems to allow KJC to establish criteria by a

regulation. This seems to conflict with the constitution which requires criteria to

be established by law and also with international standards.

x x LC

5, 13,

15,

20

P

Implemented: KJC has put forward a policy recommendation to

introduce a provision regarding the repeal of this provision.

Action point: Article 26 Law on Courts need to be revised.

The Recommendation is satisfied. Art. 26 of the LC is

amended in 2015 and the criteria for appointment are

listed by the Law.

III 55

Special criteria and procedure for the appointment of Chief State Prosecutor

The Chief State Prosecutor is central to the independence of the prosecutorial

service, because all prosecutors are accountable to him/her, so that he/she can

(at least in theory) influence prosecutorial decisions taken by all his/her

subordinates.

It might be advisable to open this position to non-acting prosecutors, however by

establishing by law clear and transparent criteria and an appropriate fair and

open procedure which ensure appointments without undue political influence. It

is recommended to give priority to acting prosecutors with high professional

performance and to foresee for non-acting prosecutors at least the same period

of professional experience in the criminal justice sector and a proven track record

in managerial functions.

x x SPL

2, 9,

10,

11,

13,

14

P

Implemented: KPC has put forward a policy recommendation in order to

open the position as Chief State Prosecutors to non-acting prosecutors.

Action point: Clearer procedural rules for the process of appointment of

the Chief State Prosecutor should be contained in the law. The revision of

the law is still under way.

According to the amendments in the LA-LSP, there are no

specific criteria for the appointment of the CSP. Only in

one provision LA-LSP sets a criteria for the appointment

conditions of CSP (Art. 8 amending Art 20 of the basic

Law.) who is required to have 8 years experience. Other

than that, both LA-LSP and LA-LKPC do not contain any

provisions where the recommendation is implemented.

Appointment, Transfer & Promotion

33


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II

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III

56

Power of the President regarding (re)appointments

If the competence to appoint judges/prosecutors remains with the President of

the Republic, the law should clearly state that KJC’s/KPC's proposal of candidates

for appointment is binding.

x x x

Const

,

KJCL,

KPCL

3, 5,

10,

11,

13

P

Implemented: The Constitutional Court clearly stated that the power of

the President is limited.

Action point: The Constitution and KJC/KPC Law should clearly state that

the power of the President is limited.


recommendation.

II

&

III

57

Harmonisation of the minimum qualifications for judges and prosecutors

The Law on Courts and the SP Law establish minimum qualification requirements

which are different for judges and for prosecutors. It is recommended to

harmonize them.

x x xCL,

SPL11

P


to introduce a provision regarding the harmonisation of the minimum

qualification.

Action point: Article 26 Law on Courts and Article 19 SP Law need to be

revised.

The law provisions were amended in 2015. Through these

amendments, the minimum qualifications are

harmonized for both judges and prosecutors.

II

&

III

58

Criteria for (re)appointment

It is recommended to structure the criteria for being (re)appointed as judges and

prosecutors as established by Article 17 KJC Law and Article 18 KPC Law and to

enhance the clarity.

It is recommended to include the criterion of 'high professional reputation and

moral integrity' In KJC/KPC Law and to clarify the content of 'personal integrity'

and 'moral integrity'.

x x xKJCL,

LPCL

2, 3,

4, 5,

10,

11,

13,

14,

15,

16

P


to introduce a provision regarding the restructuring of the criteria and in

order to clarify the terms.

Action point: Article 17/18 of KJC/KPC Law and Article 26 of Law on

Courts and Article 19 of SP Law need to be revised.

The criteria 'high professional reputation' and ' personal

integrity' are foreseen in the amendments of the LC and

LSP in force on 15 July 2015. Art. 26, LC and Art.19 LSP are

amended accordingly.

34


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

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the

r

Stat

us

of

Im-

ple

me

nta

tio

n



II

&

III

59

Special criteria for reappointment

The criteria for re-appointment are the same as those for appointment. This is

acceptable. However, the basis for re-appointment should be mainly the

evaluation of the performance of judges/prosecutors during the initial term. In

case of mandatory initial training after appointment, the results of the exams

during the initial training and the evaluation during the initial training, including

the in-field training phase should be taken into account. A minimum scoring in

the exams and the evaluations for being re-appointed should be established by

law/regulation.

At the end of the initial term the judge/prosecutor should have the right to

receive a written and reasoned decision on whether or not he/she is

reappointed.

x x x

KJCL,

KPCL,

KJIL/J

AL

3, 4,

5, 10,

11,

13

P

Implemented: The criteria for reappointment are foreseen by law. The

Councils have put forward a policy recommendation to base the decision

on re-appointment on the evaluation, including the results of the exams

during the initial training and the evaluation during the initial term.

Action point: The process of law amendments is under way.

The recommendation is implemented through the law

amendments in 2015 - two evaluations are foreseen after

the initial appointment: first one after 12 month initial

training and the second one at the end of the 3 year

initial appointment as a precondition for a proposal for

permanent appointment.

II

&

III

60

Background checks

It is recommended to establish clearly by law the scope of background checks,

the access of candidates to all documents collected during the vetting, the right

of being heard and the possibility of a judicial review. The background check

should respect the privacy and dignity of the candidates and refer to the criminal

record and any other disqualifying ground from the police, anti-corruption, tax

administration, financial intelligence unit and disciplinary authorities.

x x xKJCL,

KPCL

2, 3,

13,

15

P


to introduce a provision regarding background checks.

Action point: KJC/KPC Law need to be revised.


recommendation. The Project has recommended to

abide by the OSCE Kiev Recommendations on Judicial

Independence in Eastern Europe, South Caucasus and

Central Asia of 2010.

II

&

III

61

Definition of 'legal' experience

Article 26 Law on Courts defines legal experience as including experience as

prosecutor, judge, lawyer or academic. SP Law does not contain any definitions.

It is recommended to refer only to professional experience after the graduation

at a law faculty and to widen the definition in Law on Courts (including for

example legal associates or legal officers at courts/prosecution offices) and

include a harmonized definition also in SP Law.

x x xCL,

SPL

3, 10,

11,

13,

14.

15

P


to introduce a provision regarding the definition of legal experience.

Action point: Article 26 Law on Courts and Article 19 of the SP Law need

to be revised.

The law amendments of Art. 26 par.2 and Art.19 LSP

define "legal experience" :“For the purpose of this

Article, experience in the legal field shall include

experience on legal matters in national and international

institutions and organizations, experience as a notary and

as a private enforcement agent”. The recommendation is

implemented.

II

&

III

62

Sources of information for appointment

It is recommended to use a wide range of sources of information and list the

sources of information, which the Councils will use during the recruitment and

appointment procedure demonstratively by law.

x x xKJCL;

KPCL

5, 10,

11,

13,

14,

15

P


to list sources of information.

Action point: KJC/KPC Law need to be revised.

The amendments of the LKJC, LKPC, LC, and LSP did not

foresee any further specification regarding the sources of

information for appointment. Thus, the KPC has defined

the sources of information in the newly adopted

Regulations on Recruitment, Exam and Appointment

(issued on 1st December 2015)

35


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

Stat

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of

Im-

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n



II

&

III

63

Mandatory initial training

It is recommended to foresee mandatory initial training for all candidates for

being appointed as judges/prosecutors, eventually with different length and

content for candidates with relevant previous professional experience.

x x xCL,

SPL

3, 4,

9, 11,

13,

14

PImplemented: Both Councils have put forward a policy recommendation

to introduce a provision regarding mandatory training for all candidates.

Action point: The laws need to be revised.

The recommendation is implemented: The law

amendments adopted in 2015 provide 12 months of

mandatory initial training

II

&

III

64

Competence to determine the number of candidates and admission to the initial

training course

The human resource planning should include long term information on the

number of office holders who shall enter into the system at least for the period

of the Councils' mandate. The competence of the Councils to determine the

number of judges and prosecutors who shall be admitted to the initial training

should be established by law.

The criteria for the admission to the initial training should be established by law

and should be based on a competitive, written and anonymous exam and other

sources of information, like results during previous exams and evaluations, and

should be carried out by KJC/KPC.

The admission to the initial training should give a high guarantee to the trainees

to be finally appointed as judges/prosecutors.

The juries of any written and oral exam should be composed of

judges/prosecutors and other persons of recognized merit in the areas or

subjects under evaluation.

x x x

KJCL,

KPCL,

KJIL/J

AL

10,

11P


to introduce a provision regarding the harmonisation of the

requirements regarding initial training and the system approach which

allows the Councils to decide on the admission to the exam. The

proposed approach would give a high guarantee to be finally selected as

judges and prosecutors.

Already now it is in the hands of the Councils to determine the number of

judges/prosecutors that shall be accepted for initial training. In case of a

law amendment in the sense of the Councils' policy recommendation this

concern will be better met.

Action point: Articles 17/18 KJC/KPC Law and 26 Law on Courts and

Article 19 SP Law as well as KJI Law need to be revised. Based on law


The Law amendments entered into force in July 2015

regarding the system for recruitment, selection and

appointment of candidates is the legal ground for

elaboration a policy by the Councils and establishing a

planning process for the new judges and prosecutors

which have to be appointed in the next few years.

Further support to the Councils in this regard is still

needed.

II

&

III

65

Evaluation/exams during the initial training

Whenever initial judicial training is considered a prerequisite of judicial selection

and appointment, the progress in developing the skills and knowledge necessary

to fulfil the various duties as a judge/prosecutor should be evaluated by the body

in charge of providing the training either on a regular basis during the period of

training or by means of an examination at the end of the training period. The

results of the exams and evaluations should be taken into account in the

selection and (re-)appointment procedure.

x x xKJCL,

KPCL

5, 10,

11

P

Implemented: Taking into account the fact that in the Constitution

foresees an initial term and based on the policy option to foresee

mandatory initial training after the appointment for the initial term both

Councils have put forward a policy recommendation which would ensure

that the reappointment decision is taken on the basis of the results of the

exams during the training period and the evaluation in the initial term.

Action point: Article 17/18 KJC/KPC Law as well as the by-law would need

to be revised.

Art. 9 of the LA-LC provides an amendment of Art 27

par.3 p.7 of the Basic Law and states: "Appointed Judges

will be evaluated following the results of the initial

training in accordance with the relevant provisions of this

law..." Same amendment takes place in LA-LSP where

Art.8 amends Art.20 of the Basic Law. The

recommendation is implemented.

36


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

Stat

us

of

Im-

ple

me

nta

tio

n



II

&

III

66

Mentoring phase during the initial training

The mentoring phase is an essential phase in the preparation for the office as

judge/prosecutor and should be under the supervision of the Councils. Currently

the mentoring phase during the initial training lasts 6 months. It is recommended

to extend this period to at least 1 year.

In this phase the responsibility given to the candidate should be step by step

increasing, so that, in the last period of this phase, they can carry out several

judicial/prosecutorial acts and tasks on their own (including presiding hearings),

even though still under the mentor judge’s/prosecutor's supervision, who finally

has to sign and approve.

x x xKJCL,

KPCL9, 11 P


which would assign full responsibility for mentoring judges/prosecutors

to the Councils.

Action point: Article 17/18 KJC/KPC Law as well as the by-law would need

to be revised.

No amendment of Art.17/18, LKJC/LKPC took place for

this recommendation. As far as the mentoring phase is

included in the initial training and the initial training is in

the competences of a judicial training body, the new Law

on KJA (still a draft) might provide the respective

provisions. A Coordination of the KJC, KPC and KJA in this

regard needs to be foreseen by the LKJA

II

&

III

67

Selection and supervision of mentors

Mentor judges/prosecutors should be carefully selected. The creation of a special

statute/by-laws for mentor judges could be considered (eventually involving

higher remuneration, at least however less regular court service as to ensure

sufficient resources to supervise candidates, etc.), in order to ensure the best

judges/prosecutors will be interested to act as mentors.

x x xKJCL,

KPCL9 P


in order to allow a legal basis for the selection and supervision of

mentoring judges/prosecutors.

Action point: KJC/KPC Law and the sub-law need to be revised/adopted.


recommendation. As far as the mentoring phase is

included in the initial training and the initial training is in

the competences of a judicial training body, the new Law

on KJA (still a draft)might provide the respective

provisions. A coordination mechanism has to be provided

by the Law.

37


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

Stat

us

of

Im-

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nta

tio

n



II

&

III

68

Disciplinary liability during the initial training phase

Candidates should be disciplinary liable for their conduct during their initial

training, in case they are appointed for an initial term prior to the initial training.

Non appropriate conduct (non-attendance of courses, non appropriate

communication and other non appropriate behaviour of the trainees) should be

a matter to be investigated by ODC and to lead to serious sanctions as provided

by law.

x x xKJCL;

KPCLBP Y

Implemented: Once appointed for the initial term the appointees are

disciplinary liable.This recommendation is implemented

II

&

III

69

Consultation with court/prosecution office before (re)-appointment

It is recommended to restrict the requirements to seek the opinion of the

respective court/prosecution office before submitting a nomination for

appointment and reappointment to the President to cases of reappointment.

x x x

Const

,

KJCL,

KPCL

11,

13N

Action point: the respective provision in Article 104(3) of the

Constitution, Article 17(3) KJC Law, Article 18(3) KPC Law should be

repealed.

The Amended LKJC, LKPC, LC, and LSP did not foresee any

further specification in July 2015. Recommendation 69 is

partially satisfied. Art. 31 of the KJC's draft Regulation

and Art. 32 of the KPC's Regulation (issued on 1

December 2015)do not limit the conditions and

requirements to seek the opinion of the respective

judicial and prosecution office, but just mention that the

opinion should be reasoned in case it contains a negative

assessment of the candidate. The opinion has a

consultative character

II

&

III

70

No appointment to a position

The appointment of a judge/prosecutor should be an appointment as

judge/prosecutor without specification of the court/prosecution office where

he/she will work.

That specification should occur in a second moment by a decision of the KJC/KPC.

As a consequence, transfers and promotions do not constitute any appointment,

but a movement/advancement in the career.

x x 3, 9 P

Implemented: In the Regulations on the Process of Appointment does

not contain any such reference any more.

Action Point: KJC/KPC need to implement this in practice.

Whereas the Amended LKJC, LKPC, LC, and LSP did not

foresee any further specification in July 2015, Art. 33 of

the KJC's draft Regulation and Art. 34 of the KPC's

Regulation foresee the appointment as judge and

prosecutor, whereas Art. 32 of the KJC draft Regulation

and Art. 33 of the KPC Regulation foresee the allocation

to a specific position under the authority of the

respective Councils.

38


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

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dar

d/o

the

r

Stat

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of

Im-

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nta

tio

n



II

&

III

71

First post assignment as judge/prosecutor

It would be desirable that the courts/prosecution offices in which younger

judges/prosecutors are assigned in the first years of their job (courts/prosecution

offices with less workload/less specialization to allow a gradual consolidation of

judicial/prosecutorial skills) are selected carefully.

Taking into account the ranking of candidates in the appointment assessment as

judge/prosecutor by KJC/KPC, the first assignment to a specific court

/prosecution office should be done in the order of their ranking.

KJC/KPC should announce the seats available and all judges/prosecutors

competing should apply to the courts/prosecution office they wish to be assigned

to.

x x 9 PImplemented: The new Regulations allow this approach.

Action point: KJC/KPC need to implement this in practice.

Whereas the Amended LKJC, LKPC, LC, and LSP did not

foresee any further specification in July 2015, Art. 32 of

the KJC draft Regulation and Art. 33 of the KPC Regulation

foresee the allocation to a specific position under the

authority of the respective Councils. The preference of

the candidates and the allocation procedures should be

better specified and defined.

II

&

III

72

Appointment for an initial term

An appointment for an initial term is questionable with regard to the

independence. However, this should not be interpreted as excluding all

possibilities for establishing temporary judges/prosecutors. In countries with

relatively new judicial systems there might be a practical need to first ascertain

whether a judge is really able to carry out his or her functions effectively before

permanent appointment. If probationary appointments are considered

indispensable, a 'refusal' to confirm the judge/prosecutor in office should be

made according to objective criteria and with the same procedural safeguards as

apply where a judge/prosecutor is to be removed from office. Thus, the

judges/prosecutors who shall not be re-appointed shall have the right to get

issued a written and reasoned decision and to challenge the decision at a court of

law.

x x x

Const

,

KJCL,

KPCL

2, 3,

5, 9,

10,

11,

14,

15,

18

P

Implemented: The Constitution foresees the appointment for an initial

term. The Councils have put forward policy recommendations which shall

ensure that the reappointment is based on the results of the exams

during the initial training and all the evaluations during the initial term.

Only objective criteria will be the basis for re-appointment. An appeal

procedure is proposed to be introduced.

Action point: on a longer term a revision of the Constitution should be

considered. Based on the current system a judicial review against a

written and reasoned decision not to re-appoint should be introduced.

The last law amendments of the relevant Laws approved

in 2015 don't foresee an appeal of the decisions of the

Councils regarding the proposals for reappointment

before an independent Court. However, the Law

amendments provide two evaluations of the

performance of judges and prosecutors during the initial

appointment and the results of the evaluations have to

be taken into consideration by the Councils when

deciding on the proposals for re-appointment.

39


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

Stat

us

of

Im-

ple

me

nta

tio

n



II

&

III

73

Appeal against a decision regarding the proposal for (re)appointment and

promotion

An unsuccessful candidate should be entitled receive a written and reasoned

decision. That implies the need for an independent complaints’ or review process

which any unsuccessful applicant may use if he or she believes that s/he was

unfairly treated in any stage of the appointments’ process.

The Supreme Court is considered an appropriate body for reviews of the

decisions of the Council. It could be restricted to questions on law and could

foresee strict time limits both for the applicant and for the Supreme Court (for

example 2 weeks). The Councils should be bound to the decision of the Supreme

Court and submit a proposal for (re)appointment to the President which are in

compliance with the decision of the Supreme Court.

x x xKJCL,

KPCL

3, 4,

5, 9,

11,

10,

20

P

Implemented: Both Councils have foreseen in their regulations the

obligation of the Appointment and Reconsideration Committee and the

Councils to notify the candidates in written, including justifications. The

regulations foresee a reconsideration process.

Action point: Legal remedies need to be introduced by law.

The last law amendments of the relevant Laws approved

in 2015 don't foresee an appeal of the decisions of the

Councils regarding the proposals for (re) appointment.

Thus, the re-consideration procedure before the Re-

consideration Committee established by the Council is

foreseen by the KPC's Regulations and KJC's draft

Regulation. However, the recommendation has to be

considered still as partially implemented.

II

&

III

74

Forms and templates relating to the process of (re)appointment

It is recommended to (re-)elaborate forms and templates which are used during

the (re)appointment process and which should be published at the website of

the Councils.

x x 9 P

Implemented: Forms and templates have been elaborated.

Action point: The Manual, containing the forms and templates still needs

to be published.

The Project elaborated new SOP and updated some of

the previous SOP in order to adapt them to the new law

amendments and the new KPC's Regulation on

Recruitment, Exam and Appointment of Prosecutors

issued on 1 December 2015. The respective training was

delivered in January 2015. The KJC is not yet active in this

sense, since the relevant Regulation is still being drafted.

II

&

III

75

Regularly no appointment to higher positions

It is recommended that the higher and more demanding positions are primarily

assigned through promotion and transfer of acting judges/prosecutors.

x x 3 P

Implemented: in the more recent recruitment and appointment

processes the Council's opened the vacancy announcement only for

positions at the Basic Courts/Prosecution Offices.

Action point: The law should explicitly require appointment to higher

positions based on evaluation.


recommendation.

40


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

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the

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Stat

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of

Im-

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n



II

&

III

76

Criteria and procedure for transfer

The criteria for transfer should be clearly established by law and the main

procedural safeguards determined by law. The law should clearly state that

judges/prosecutors shall not be transferred against their will. Exceptions might

be foreseen in the following cases: as consequence of disciplinary measures; in

case of abolition of his/her place, determined by objective and transparent

criteria. Only a structural (contrary to transitory) need of improvement of the

access to justice (e.g. consistent and permanent increase of caseload) or changes

in the administrative and territorial division should be considered as ground for

the creation/abolishment of seats.

The law should establish the right of the judge/prosecutor whose seat is

abolished, to choose the court/prosecution office to which he/she would like to

be transferred.

Any decision on a transfer should be in written und reasoned.

x x xKJCL,

KPCL

3, 4,

9, 11P

Implemented: The principle that there should not be a transfer against

the will of the office holder is contained in the law.

Action point: The exceptions from the principle to prohibit transfers

against the will of the office holder ('extraordinary circumstances' or

'insufficient judges/prosecutors') currently set out in Article 20 KJC Law

and Article 22 KPC Law seem too vague. Clearer criteria need to be

established by law. Furthermore, decisions on transfer should be in

written and contain a proper reasoning. These procedural aspects need

to be established by law too.

No Law amendment was made to reflect this

recommendation. However, the Project provides

comments and recommendations to the KJC for the

improvement of the KJC's Regulation on transfer of

judges. The Projects' experts provided the KPC with a

Concept document for transfer and promotion of

prosecutors and Draft Regulation in compliance with

European standards. The Regulation is still not adopted

by the Council

II

&

III

77

Regular transfer needs analysis

The needs for transfers should be assessed by KJC/KPC on a regular basis, but not

too frequently in order to avoid that this will constitute a factor of instability (for

example only every 5 years), and its results – including the number of

judges/prosecutors needed in each court/prosecution office and branch – should

be made public.

x x xKJCL;

KPCL9 P

Implemented: Article 20 KJC Law/22 KPC Law prohibits the transfer

against the will of the judge/prosecutor.

Action point: A clear provision on when the abolition/creation of new

positions in a court/prosecution office should be included in the law.


recommendation. See comments above on R.76

II

&

III

78

Criteria for the approval of an application for transfer

The transfer of a judge/prosecutors should be based on the results of the

evaluation in order to ensure a competition and career advancement incentives

to better performing post holders. In case of equal scoring in the evaluation,

preference should be given to the applicants of underrepresented

minorities/gender and then with more experience as a judge/prosecutor

(seniority);

x x xKJCL;

KPCL

3, 4,

9N Action point: No criteria for transfer are established yet by law.


recommendation. However the KPC's Draft Regulation on

Transfer and Promotion of Prosecutors elaborated by the

Project and the KPC's Working Group provides the

transfer to be based on the results of the evaluation of

the performance of prosecutors.

41


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

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n



II

&

III

79

Principle of immovability

It is recommended to develop a concept as to ensure the principle of

immovability. The current system is not reflecting the principle of immovability

sufficiently (transfer for six months upon approval of the president judge/chief

prosecutor in cases of lack of judges/prosecutors) respectively seems not to allow

sufficient flexibility (transfer for 30 days in extraordinary circumstances).

x x xKJCL,

KPCL

3, 5,

9, 11N

Action point: A concept as to ensure the principle of immovability and

gives sufficient flexibility will still need to be developed.

The recommendation is not implemented. Both Councils

have to find a balance between the implementation of

the principle of immovability and the transfer of

judges/prosecutors. A concept document is

recommended.

II

&

III

80

Appeal against decision on transfer

There should be a possibility of an appeal (for example to the Supreme Court)

against all decisions regarding transfer of judges/prosecutors.

Even regarding temporary transfers the right to appeal to a court of law

(Supreme Court) should be foreseen, eventually restricted to questions on law in

order to allow obtaining compensation for damages and losses caused by an

unlawful decision.

An appeal should not have suspensive effect. As counterbalance, it should be

possible to request the interim measures of an immediate suspension of the

effects of a KJC's/KPC's decision in case of an evident unlawfulness or where the

immediate enforcement would cause substantial damages to the person affected

(summaria cognitio).

x x xKJCL.

KPCL

3, 9,

11N

Implemented: KJC Law already foresees an appeal in cases of transfer of

six months or on a permanent basis.

Action point: This recommendation would need as first step a law

amendment. The appeal against transfer decisions of judges should not

be restricted. Appeal rights and procedures need to be established by law

and not by a regulation, thus Article 22(6) KPC Law should be deleted.


recommendation.

42


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

Stat

us

of

Im-

ple

me

nta

tio

n



II

&

III

81

Basis for decision on promotion

The criteria for promotion should be clearly established by law and the main

procedural safeguards determined by law. It should be considered to base the

decision on the promotion on a minimum period of professional experience and

on periodical evaluation of the professional performance, in order to ensure

competition and career advancement incentives to better performing post

holders. In case of a promotion to a managerial post (president judge or chief

prosecutor), management training and management skills should be explicitly

required as criterion for being promoted.

Secondarily promotion could be based on seniority.

x x x

KJCL,

KPCL,

LC,

SPL

2, 3,

4, 5,

9, 14

P

Implemented: The Law on Courts and the SP Law foresee a minimum of

professional experience for hierarchically higher courts/prosecution

offices. KJC/KPC Law establish the same criteria for evaluation and for

promotion. KJC has elaborated a Regulation on the Process of Promotion

of Judges.

Action point: The legal basis should be revised in order to establish a

clearer basis for promotion. KPC still needs to adopt a respective

Regulation.


recommendation. The Project drafted a Regulation on

Transfer and Promotion on Prosecutors that reflects as

much as possible this recommendation. The KPC still

needs to adopt the Draft Regulation.

II

&

III

82

Organisation of transfer and promotion

It should be considered to schedule periodical movements of judges/prosecutors,

in order to ensure that, every judge/prosecutor has an opportunity to ask for

transfer or promotion for a vacant position (before the announcement of the

movement, KJC/KPC should assess which seats must be filled in and make that

information public to all the judges/prosecutors). This would allow to

concentrate all the transfers/promotions in the same period, thus to minimize

the costs of the process.

x x BP NAction point: KJC/KPC still need to establish a concept for dealing with

transfers and promotions.

The Project provides both Councils with Concept

documents, analyses and reports in 2015 with regard to

the transfer and promotion. Further steps have to be

taken by the Councils and their Committees. The Concept

documents have to be approved by the Councils and the

policy decisions to be implemented accordingly.

II

&

III

83

No demotion

Once promoted to a superior category, a judge/prosecutor should not in any case

- except if foreseen as disciplinary sanction - be demoted to an inferior category,

even if his/her seat is abolished.

x x xKJCL,

KPCL3 N Action point: KJC/KPC Law need to be clarified in this point.


recommendation.

43


om

po

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nt

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of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

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lega

l act

Inte

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II

&

III

84

Evaluation as task of the Councils

It needs to be ensured that the Councils have the power to set up the necessary

tools to evaluate the justice/prosecution system and that the evaluation of

judges/prosecutors to be performed by the Councils, is fulfilled in an

independent manner. The evaluation of the system should be clearly

distinguished from the evaluation of the single judge/prosecutor, though some

sources of information (like statistics) may be the same.

In regard to KPC's PPRU the tasks should be clarified and the PPRU should carry

out only evaluations regarding the system and not regarding single prosecutors.

x x xKJCL;

KPCL

6, 9,

11,

13,

20,

21

Y

Implemented: Both Councils have the power for the evaluation of judges

and prosecutors and the justice/prosecutorial system. In KPC the tasks of

the PPRU has been clarified and carries out only the evaluations for the

system and not for prosecutors.

The newly adopted amendments of the LKJC ( Article

19/A) and Law on the KPC (Article 14/B) provide the

establishment of permanent Council's Committees on

Evaluation of the Performance of Judges/Prosecutors and

their compositions and competences. Thus, a clear

distinction of the bodies and competences regarding the

evaluation of individual performance of

judges/prosecutors and judicial/prosecutorial bodies is

provided by the Law.

II

&

III

85

Purpose of evaluation

The purpose of the evaluation of single judges/prosecutors should be

established by law. The purpose of evaluation of single judges/prosecutors could

refer to the following:

• To assist in the on-going process of improving the skills and capacity of

judges/prosecutors

• To encourage better quality and quantity of work of judges/prosecutors

• To establish a consistent “bench marks” for the quality and quantity of work to

be performed by judges/prosecutors across Kosovo

• To inform KJC/KPC decisions in relation to reappointment

• To inform KJC/KPC decisions in relation to promotion and transfer

• To inform KJC's/KPC's planning of training and other methods of professional

career development

• To facilitate the identification of judges/prosecutors who may have particular

skills.

x x xKJCL,

KPCL

11,

21N Action point: The KJC/KPC Law will need to be revised.


recommendation. However, the Law and Regulation

system grant a good level of efficacy of the Prosecutors

performance evaluation system. In the future criteria and

indicators should be revised, improved and applied

properly. The Project elaborated a Concept documents

and final assessment reports and delivered capacity

building trainings in 2016 for the KJC, KPC , Evaluation

Committees and the supporting staff where the purpose

of evaluation was clarified and discussed.

II

&

III

86

Criteria for the evaluation of judges/prosecutors

The evaluation of judges and prosecutors should be based on objective and

published criteria and should not only consist of an examination of the legal

expertise and the general professional abilities of judges/prosecutors, but also of

more personal information, such as their personal qualities and communication

skills. All judges/prosecutors should be subject to evaluation. The Councils should

play a fundamental role in the identification of the general assessment criteria.

The criteria set out in the laws are recommended to be more logically structured

and compliance between the Laws and the Regulations needs to be ensured.

x x xKJCL,

KPCL

11,

15,

19,

20,

21

P

Implemented: The criteria for the evaluation of judges and prosecutors

are contained in the KJC/KPC Law. Both Councils have adopted a

Regulation on the Evaluation of Judges/Prosecutors, which foresee the

evaluation of legal expertise, professional abilities and also personal

qualities.

Action point: The criteria for evaluation are the same as those for

appointment foreseen in the law. They should be revised in order to

structure them more logically. The criteria in the law should be linked

with consistent indicators in the Regulation.

The Law Amendments adopted in 2015 did not include

any provisions that contain revision of the criteria for

evaluation. In the future, criteria and indicators should be

revised and improved. For the time being it is better to

maintain the on-going structure of the Regulation to

avoid discrepancies and inequalities in the evaluation

process.

Evaluation of Judges and Prosecutors

44


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

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II

&

III

87

Independence, integrity and impartiality as evaluation criteria

All judges/prosecutors should be evaluated against the values of independence,

integrity and impartiality, which truly represent judge's/prosecutor's

prerequisites. It may be considered to stipulate that the absence of such values

or negative evaluation of either of them, however, implies a negative assessment

even if all other parameters are positive. Such consequence would have to be

established by law.

x x xKJCL;

KPCL

5, 9,

11,

15

P

Implemented: KJC/KPC Law refer to the impartiality as evaluation

criterion. The Regulations refer to independence and impartiality.

Action point: Independence as criterion should be included in the law.

The consequence of a negative evaluation against these criteria could be

considered.


recommendation

II

&

III

88

Evaluation frequency

The minimum evaluation frequency should be established by law. It may be

considered to distinguish between different categories of judges and prosecutors

and to differentiate the frequencies between more and less experienced

judges/prosecutors.

x x xKJCL

KPCL21

P

Implemented: The evaluation frequency is determined in both

Regulations.

Action point: The minimum evaluation frequency should be established

by law. A differentiated evaluation frequency may be considered in

correlation to the years of experience of a judge/prosecutor.

KPC and KJC Law Amendments introduced the minimum

evaluation frequency. A differentiated evaluation

frequency is considered in correlation to the years of

experience of a judge/prosecutor. Art 19 LKJC and Art.

21 of the Law on KPC are amended accordingly.

II

&

III

89

Quantitative and qualitative evaluation and independence

Kosovo has opted for evaluating judges/prosecutors both by quantitative and

qualitative indicators. This is in accordance with international standards and

should be established as a principle by law. It should be stated explicitly that the

evaluation of the performance of judges/prosecutors shall not interfere with

their independence, particularly with the merit of the rulings/legal acts, including

the facts proved and not proved and the underlying assumptions and

assessments.

x x xKJCL;

KPCL

2, 5,

9, 11,

13,

15,

21

P

Implemented: The Regulations of both Councils foresee an evaluation

based on qualitative and quantitative indicators.

Action point: A basic provisions should be established by law and the

laws should explicitly state that evaluation of the performance of

judges/prosecutors shall not interfere with their independence.

The provision has been introduced in the Regulation on

Performance Evaluation of Prosecutors, not in the

Amended Law on KPC and Law on SP

II

&

III

90

Quality indicators

As it is impossible at the moment to rely upon widely accepted quality criteria,

quality indicators should at least be chosen by wide consensus among legal

professionals. The Councils should play a central role in the choice and the

collection of "quality" data, in the design of the data collection procedure, in the

evaluation of results, in its dissemination as feed-back to the individual actors on

a confidential basis, as well as to the general public.

x x9, 11,

21P

Implemented: Both Regulations foresee quality indicators which were

selected on the process of elaboration of the Regulations.

Action point: The information to the general public could be enhanced .

No changes have occured with regard to the

implementation of this recommendation

45


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

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II

&

III

91

Sources of information

Sources of information be varied and diversified. They should include

a) a sample of decisions/procedural documents selected by the Evaluation

Committee/supervisor

b) and by those being evaluated,

c) personal file of the judges/prosecutors,

d) the self assessment, objections and interview of the evaluated,

e) evaluation report by Court President/Chief Prosecutor, and or head of

department of the evaluated,

f) other reports of supervisors,

g) final disciplinary decisions,

h) the statistical elements provided by the supervisors and by data-gathering

systems with varying levels of sophistication

i) other documents showing managerial skills for managerial positions

(instructions, work plans, activity reports, etc.),

j) other documents containing objective information relevant for the professional

activity and personal behaviour, as appropriate.

Once agreed that the assessment should not only consist of an examination of

the legal expertise and the general professional abilities of judges/prosecutors,

but also of more personal abilities, such as their personal qualities and their

communication skills, it should be considered the usefulness of interviewing

other judicial stakeholders, like clerks and lawyers. The sources of information

should be listed demonstratively by law.

x x xKJCL,

KPLC

9, 13,

21P

Implemented: KJC's/KPC's Regulation contain a catch all clause referring

to documents which contain objective and relevant information relevant

on the professional activity and the personal behaviour that affects the

professional activity.

Action point: The law still needs to be revised and consequently both

Regulations.

The Laws on KPC and SP haven't been amended on these

points. The Amended KPC's Regulation on Evaluation of

the Performance of Prosecutors has improved the source

of information system.

46


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

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the

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Stat

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n



II

&

III

92

Personal files of judges and prosecutors as source of information

The judge's/prosecutor's personal file is located in the KJC/KPC. The Evaluation

Committee is recommended to request to the Council the information to be

assessed. Given the fact that some information may have confidential nature,

KJC/KPC shall define in advance which information may be disclosed and to

whom.

It is recommended to disclose to the Evaluation Committee

• Biographical registration;

• Academic qualifications;

• Professional path;

• Disciplinary registration of the judge/prosecutor;

• The results of previous evaluation procedures;

• If applicable, the contents of previous decisions regarding evaluation or

disciplinary matters;

• Training received

Only the final decisions (both in evaluation and disciplinary matters) should be

assessed for evaluation purposes.

x x BP P

Implemented: Both Regulations refer to the personal files of the

judges/prosecutors, which should be disclosed to the Evaluation

Committee.

Action point: The decision on which documents within the personal file's

shall be disclosed is not yet taken. This recommendation will have to be

implemented in any evaluation.

The practice related to composition and keeping of the

personal file and of the file for the evaluation process,

assessed to be already in place, has to be confirmed and

encouraged. The “Regulation on the organization and

functioning of the Council” should include rules on the

personal file (composition, Unit in charge of custody,

management…) and the right of access by the relevant

Prosecutor.

II

&

III

93

Statistics as source of information

It needs to be ensured that data used for evaluation purposes are exhaustive and

accurate.

x x

5, 9,

13,

21

P

Implemented: Both Councils have set up an electronic data basis with

relevant data referring to single judges/prosecutors.

Action point: The system should be regularly improved and developed.

Improvement and development is still recommended.

II

&

III

94

Reversal rate as source of information

In Kosovo judges/prosecutors are inter alia evaluated considering the percentage

of the decisions reversed on appeal as an indicator. An objective evaluation of

the quality of judicial/prosecutorial decisions may be one of the elements

relevant for the professional assessment of a single judge/prosecutor, (but even

in this context one should take into account the principle of internal

independence and the fact that reversal of decisions must be accepted as a

normal outcome of judicial/prosecutorial procedures, without any fault on the

part of the first judge/prosecutor). It is recommended to avoid the use of

reversal rates as a too important indicator to assess the quality of the

judicial/prosecutorial activity. It should be underlined that the quality of the

outcome of a single case depends heavily on the quality of all procedural steps

(initiated by the police, public prosecution, private lawyers or parties), so that

evaluation of judicial/prosecutorial performance is impossible without evaluation

of each single procedural context. If the reversal rate is taken into account it

needs to be made clear that only qualitative breaches of the law may be

considered in the evaluation.

x x xKJCL,

KPCL

9, 11,

13,

19,

21

P

Implemented: The KJC Regulation explicitly refers to statistical data as

subsidiary indicator and establishes that only substantive breaches of the

law are taken into account when referring to the reversal rate.

KPC Regulation has set out a procedure that ensures that statistical data

are not the predominant element of evaluation.

Action point: The KJC Regulation notwithstanding declaring statistical

data as subsidiary indicator refers mainly to statistics, thus it should be

revised as to ensure that statistical data are de facto a subsidiary element

in the evaluation.

This recommendation has to be considered as

implemented on by-law level.

47


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

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of

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tio

n



II

&

III

95

Decisions/legal acts as source of information

In Kosovo rulings/prosecutorial acts are assessed for evaluation purposes.

KJC/KPC are recommended to ensure that only the formal validity of the act, its

logic, the speed with which it is made and the extent to which the

jurisprudential/legal knowledge of the judge/prosecutor is up-to-date are taken

into consideration. The judge's/prosecutor's interpretation of the law and

assessment of facts shall never be taken into account.

x x

5, 9,

11,

15,

21

P

Implemented: In the training the ratio behind the assessment of

rulings/acts of prosecutors was explained.

Action point: In further evaluations the Councils will have to be attentive

to this recommendation.

The Project recommended to introduce among the

general principle of evaluation of prosecutors the

following provision: "Evaluation cannot have as object

the merit of the case or the content of decisions". The

recommendation has not been accepted.

II

&

III

96

Rules for randomness of selection of decisions

The Councils should establish general criteria to select the decisions to be

analysed, so that the sampling is informative of the work done by the

judge/prosecutor evaluated. For example, it might be established the number of

decisions to be analysed by area of jurisdiction, by procedural specie, by subject,

etc.

x x BP P

Implemented: KPC's Regulation contains a general rule referring to the

time frame of evaluation. KJC adopts a decision for random selection of

judges' decision at the beginning of each year.

Action point: KJC's decision for the random selection of cases just defines

the number of cases to be assessed. Also KPC is recommended to refer to

the number of cases, but also to area of jurisdiction, procedural specie,

subject, etc.

The KPC's amended Regulation (December 2015)

introduced a more specific rule on random selection of

cases, based on previous experience

II

&

III

97

Conduct out of office or personal beliefs as source of information

Judge’s/prosecutor's conduct in private or the judge's/prosecutor's political,

ideological and religious opinions should not be taken into consideration except

when such conduct has repercussions on the credibility of their professional

activity and the image of the legal institution concerned.

x x3, 6,

14P

Implemented: In the training the ratio behind the assessment of

behaviour/belief of judges/prosecutors was explained. KPC Regulation

explicitly defines that only such conduct out of office shall be assessed 'as

far as it implies with the professional activity'. KJC's Regulation refers to

'objective and relevant information on the personal behaviour affecting

the professional activity of the judge'.

Action point: In further evaluations the Councils will have to be attentive

to this recommendation.

Further implementation of this recommendation by the

Evaluation Committees and Councils is needed.

II

&

III

98

Time standards for the resolution of court cases

If the compliance with time standards is taken into account it needs to be

ensured that differences in the difficulty and lengthiness of cases do not affect

negatively on the evaluation.

x 21 Y

Implemented: The revised KJC and the new KPC Regulation does not

refer (any more) to time standards.

Action point: KJC Regulation on Defining the Norms of the Work of

Judges weightens the work of judges very roughly, for example referring

to the panel composition or to whether a case is solved by an acceptance

of the guilt or punitive order and all other criminal cases.



II

&

III

99

Case resolution order

This indicator seems useless, if not prejudicial. Once compliance with time

standards for case resolution and with legal deadlines for drafting court decisions

are comprehensively assessed, the assessment of the compliance with the case

resolution order is not necessary any more.

It is not recommended to not retard a case just to comply with the case

resolution order.

x BP NAction point: The KJC's Regulation should be revised in the regard to the

case resolution order.



48


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

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II

&

III

100

Procedure of evaluation of judges and prosecutors

The procedure should include the participation of those in a supervisory position

and should enable judges/prosecutors to express their view on their own

activities and on the assessment of these activities. Judges/prosecutors should

have the right to draw up reports on themselves, providing a profile of their

professional activities and outlining the organizational criteria aimed at

improving levels of efficiency, and subordinating to the functions of the office.

Judges/prosecutors should have the right to be heard. Moreover, the Councils

should not substitute itself for the relevant judicial body entrusted with the

individual assessment of judges and indirectly prosecutors. Basic provisions

should be lined out in the laws.

x x xKJCL,

KPCL

3, 9,

13,

19,

20,

21

P

Implemented: The Regulations of both Councils foresee the evaluation by

the Chief Prosecutor/Court President and the possibility of judges and

prosecutors to deliver a self evaluation and to object the assessment in

different phases of the procedure. In the training focus was put to

explain the difference between evaluation and judicial review.

Action point: Basic provision will have to be included in the law. It may be

considered to include a mandatory interview.

The amended Laws on KPC and SP don't contain this

provision.

II

&

III

101

Scoring in the evaluation and consequence of the evaluation

At the end of the evaluation, a score should be given which may vary from

positive, satisfactory to unsatisfactory. An average or low score should require

that the judge or prosecutor participates in specific professional training and

requalification courses. In general, a second negative evaluation should

determine the latter’s removal from office. The scale of grades and, particularly,

the definition of the scope of each grade, as well as the consequences of the

evaluations should be prescribed by law, for the sake of legal certainty and

transparency.

x x xKJCL,

KPCL

20,

21P

Implemented: Both Regulations foresee a scoring at the end of the

evaluation.

Action point: The legal basis for the scoring and the consequences of

evaluation needs still to be established.

The amended Laws on KPC and SP don't contain this

provision. The secondary normative acts can be

considered an adequate legal base.

II

&

III

102

Scoring per criterion and not per indicator

It is recommended to score only criteria and not each indicator. Indicators that

are not relevant for the respective judge/prosecutor, or if there is nothing to be

specified on a certain indicator, it is not necessary to use it. Indicators shall be

seen as a tool to facilitate evaluation of certain criteria.

x x 21 P

Implemented: The ratio of this recommendation was discussed in the

trainings.

Action point: The recommendation will have to be implemented in each

process of evaluation.

For Prosecutors the scoring is per indicators and criteria.

To score only criteria saves time but is less transparent.

Clear rules for the scoring system are established by the

Regulations.

II

&

III

103

Appeal against decisions on the evaluation

The procedure should enable judges/prosecutors to challenge assessments

before an independent authority or a court.

An appeal to the Supreme Court might be considered. The appeal might be

restricted to questions on law.

x x xKJCL,

KPCL

3, 9,

11,

19

20,

21

N Action point: KJC/KPC Law will have to be amended.The amended Laws on KPC and SP don't contain this

provision.

49


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

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the

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of

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nta

tio

n



II

&

III

104

Profile of members of the Evaluation Committee

In order to guarantee the transparency of the nomination, the profile of the

members of the Evaluation Committee should be defined in the law/by-law,

ensuring that those members have professional experience and a high level of

professional performance. For this purpose, the legal provisions may require a

minimum of seniority and a minimum grade in the evaluations.

x xKJCL;

KPCL21

P

Implemented: KJC's Regulation requires that the chair of the Evaluation

Committee is a judge from the Supreme Court and all members should

have at least 5 years experience as judge. KPC Regulation foresees that

the members shall be elected from several levels of the prosecution

offices.

Action point: Both Councils should establish clearer rules on the profile

of the members. It should not be sufficient to be a judge/prosecutor of a

certain level, but also to have performed excellently during a certain

period of time.

This recommendation is addressed partially by adding the

following provision in Art. 11 of the LA, amending Art 14

B of the basic Law: 1. Prosecutors Performance

Assessment Committee consists of prosecutors with

experience and high moral integrity in and personal. The

same model is adopted for the KJC's Evaluation

committee (amendments of Article 19, LKJC

II

&

III

105

Annual performance coaching session

In addition to the regular evaluations by KJC/KPC it is recommended to consider

the obligation of the Court President/Chief Prosecutor to carry out yearly

“performance coaching session' with all judges/prosecutors in their

courts/prosecution office, which should be recorded in writing. The aim of this

could be:

• Identify strengths and weaknesses

• To address performance weaknesses at an early stage and agree on objectives

and measures to ensure that the judge/prosecutor improves

• To identify and develop training needs and a training and career plan for each

judge/prosecutor

• To address any weaknesses identified by the Performance Evaluation

Committee

This tool should be used primarily as developmental tool and be based on the co-

operation. It should not be seen as tool for policing judges/prosecutors, but as

means of encouraging them to improve, to plan the career etc.

x x21,

BPN

Action point: The establishment of an annual performance coaching

session is recommended to be introduced.The recommendation is not implemented

50


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

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ion

al

stan

dar

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n



II

&

III

106

Tasks of the PPRU

The mandate of the Unit is foreseen in the Law on KPC, which establishes among

others the task to report on the work of the prosecution offices (Article 15.1.

LKPC). It is recommended to bring Art.2.1. of the Regulation on the Functioning

of the PPRU in line with the law and to stipulate that the unit is a body under

direction of the KPC that has inter alia the mandate to collect information from

all prosecution offices for individual performance of prosecutors and for the

organization of the work of the offices and to elaborate and present reports to

the KPC regularly and upon a request.

x BP Y Implemented: The Regulation was accordingly revised in October 2013.

The amendments of the LKPC adopted on 28 May 2015

provides establishment of a separate Secretariat of the

KPC and issuing of Regulation on the Secretariat. It is

recommended that the structure and the tasks of the

PPRU be reviewed and revised in accordance with the

new law amendments and the KPC's policy documents

II

&

III

107

Tasks of the Training Office within the PPRU

The Article of the Regulation on the Functioning of the PPRU on Training Office is

not in compliance with the KJI Law and the KPC Law. Providing training is in the

competence of KJI. According to Article 4.1.23 KPC Law KPC shall "determine

policies, standards and instructions related to the training of prosecutors and

other personnel and overseeing the implementation of professional training

and development of prosecutors by the Institute or other training associations or

organizations." The Regulation should be revised as to bring it in line with the

Laws.

x BP Y Implemented: The Regulation was accordingly revised in October 2013.

The amendments of the LKPC adopted on 28 May 2015

provides establishment of a separate Secretariat of the

KPC and issuing of Regulation on the Secretariat. It is

recommended that the structure and the tasks of the

Training office be reviewed and revised in accordance

with the new law amendments, the Regulations and the

KPC's policy documents regarding the training of

prosecutors. The Project submitted a Concept document

on training for judges and prosecutors in November 2015

51


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

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of

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ple

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nta

tio

n



II

&

III

108

Disciplinary proceedings as task of the Councils

It needs to be ensured that the competence to carry out disciplinary proceedings

against judges/prosecutors is entirely assigned to the Councils or mainly

assigned to the Councils in co-operation with other bodies, for example such

responsible for investigation.

x x x

3, 5,

6, 11,

13,

16,

18,

20,

22

Y

Implemented: The Constitution and the KJC/KPC Law assigns to the

Councils the power for disciplinary proceedings. The investigation is

carried out by ODC.

The status of this recommendation remains unchanged.

II

&

III

109

General principles

General principles guiding the disciplinary proceeding should be established by

law, such as

• Principle of legality

• Principle of equality before the law

• Presumption of innocence

• Principle of in dubio pro reo

• Principle of proportionality

• Principle of independence and impartiality

• Principle of publicity

• Principle of confidentiality

x x xKJCL,

KPCL

2, 3,

4, 9,

22

NAction point: The basic provisions governing the disciplinary proceedings

have to be established by law.


recommendation. The status of this recommendation

remains unchanged.

II

&

III

110

Composition of the Councils in disciplinary proceedings/Reconsideration

process to the Councils and appeal to independent court

The review of decisions of the Disciplinary Committee by the Councils should be a

reconsideration procedure, which is restricted to questions of law. Thus the

Council would not be obligated to hold a hearing as to comply with fair trial

standards. Furthermore, decisions of the Council should be reviewed by an

independent court (for example Supreme Court). With a view to this appeal

procedure all members of the Councils, including the members of the Disciplinary

Committees, may participate in the reconsideration procedure.

x x xKJCL,

KPCL

3,6,

9, 11,

13,

22

P


foreseeing a reconsideration procedure to the Councils and an appeal

procedure to the Supreme Court. This solution would also solve to

problem often encountered by KPC of the missing quorum when deciding

on 'appeals' in disciplinary issues.

Action point: The revision of the law is pending.

The recommendation on the principal of Judicial review

of the Council's disciplinary Decisions was not taken into

consideration and is not reflected in the amendments of

the Law on KJC/KPC.

Disciplinary System

52


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

Stat

us

of

Im-

ple

me

nta

tio

n



II

&

III

111

Rotation of members of the Disciplinary Committee

The rotation of the members of the Committee, during the five years term of the

members of the Council may allow different and fruitful new approach to such a

sensitive matters as disciplinary liability of the judges/prosecutors, giving a

chance to other members of the Councils also have a more intense and effective

participation in this very important competence of the Councils.

It would be recommendable to foresee this by law. However as the Law on

KJC/KPC does not prevent a rotation of Committee members that possibility

could be considered in the regulation, establishing, for instance a 2,5 years term,

ensuring a rotation of members in the middle of the Council 5 years term.

x x BP NAction point: A rotation principle of the members of the Disciplinary

Committee could be considered.The status of this recommendations remains unchanged

II

&

III

112

Definition of misconducts

It is recommended to define ‘performance issue’, ‘negligence in performing’,

‘failure to perform’, ‘abuse of judicial/prosecutorial functions’, ‘failure to perform

independently’ and ‘failure to perform impartially’ more clearly in compliance

with the principle ‘nulla poene sine lege’. Also the delimitation between

disciplinary issues and performance issues should be clarified.

Disciplinary misconducts have always to be established by law and not by

regulations.

x x xKJCL,

KPCL

1, 5,

6, 13,

14,

18,

20,

22

N

Action point: The laws need to be amended accordingly. Article 34(3) KJC

Law, which foresees that KJC may issue regulations as to define the

misconducts, has to be deleted.

No Law amendment took place for this recommendation.

II

&

III

113

Erroneous judicial/prosecutorial acts as disciplinary misconduct

A judicial/prosecutorial act shall never be object of a disciplinary proceedings as

such acts can only be criticized by the exercise of the means of legal remedies as

provided by law for the litigants except in the cases of manifest violation of the

law caused by ignorance or inexcusable negligence.

x x xKJCL,

KPCL

5, 11,

13,

15,

20,

21,

22

N

Action point: The laws should delimitate clearly disciplinary misconduct

from aspects that need to be addressed by legal remedies. In practice

this delimitation needs to be established by a case law.


53


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

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the

r

Stat

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Im-

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tio

n



II

&

III

114

Disciplinary misconduct and performance issues

Ethical standards establish best practice. Not every breach of a standard of

professional conduct mentioned in the Code of Professional Ethics should of itself

constitute a disciplinary infringement. The Code of Ethics just serves as self-

regulatory instrument and as general rules that guide the activities of

judges/prosecutors. Only serious failures to observe professional standards shall

be considered. A clearer provision is needed as to avoid an automatism between

a breach of a standard of the Code of Ethics and a misconduct in the sense of the

Law.

x x xKJCL,

KPCL

6, 11,

13,

21,

22

N

Action point: The laws should not foresee that a breach of the Code of

Ethics automatically constitutes a misconduct. A clearer delimitation

between performance issues and disciplinary relevant issues is needed.

The status of this recommendations remains unchanged

II

&

III

115

Commentary to the Bangalore principle as guidance document in disciplinary

proceedings

In the difficult exercise to delimitate disciplinary relevant behaviours from

performance issues the Disciplinary Committees and the Councils are

recommended to use the Commentary to the Bangalore Principles, which

contains a collection of international best practice examples relating to the main

values of the judiciary.

x x 14 P

Implemented: The Project has elaborated a correlation table which links

provisions of the Code of Ethics for Prosecutors with Kosovo law

provisions and paragraphs of the Commentary to the Bangalore

Principles. Extracts of the Commentary were translated into Albanian and

disseminated to the Councils.

Action point: When interpreting the law the relevant bodies are advised

to consult these documents.

The Correlation table elaborated by the Project and

submitted to the KJC, KPC and ODC in 2013 is a very

useful document that has to be applied by disciplinary

bodies. The recommendation is not implemented.

II

&

III

116

Disciplinary misconduct of member of the Councils

A specific provision defining the disciplinary misconduct and the disciplinary

sanctions for members of the Council is needed as well as clear rules on the

criteria for suspension and the procedure to be adopted in such cases.

x x xKJCL,

KPCL9, 22 N Action point: The laws need to be amended accordingly.

The status of this recommendations is implemented

partially since it was not included in the amendments of

the Law on KJC/KPC. The KJC issued a Regulation on

disciplinary procedure against members of the Councils.

The KJC still has a Draft Regulation. Both Regulations are

commented by the Project. The respective

recommendations are submitted in 2015.

54


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

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the

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Stat

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of

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n



II

&

III

117

Basic procedural provisions

A basic decision needs to be taken on whether to include in the KPC/KJC Law

provision regarding record keeping, evidence taking, requirements related to

evidences, etc. Alternatively it could be considered to refer to the provisions or

to part of provisions of the Criminal Procedure Code, as far as there are no

particular provisions in a KJC/KPC Law.

x x xKJCL,

KPCL

2, 3,

4, 6,

9, 22

N Action point: The laws need to be amended accordingly. The status of this recommendation remains unchanged.

II

&

III

118

Initiation of disciplinary proceedings

The legislator will have to take a basic decision to whom to assign the power to

initiate the disciplinary proceeding, including investigation. In most countries the

opening of a disciplinary proceeding, including also the investigation, is taken by

the competent Council or in countries without a Council by the competent

independent disciplinary body. Opening disciplinary investigations against a

prosecutor/judge is a decision with a strong impact on the prosecutor’s

reputation, daily work, career and personal life.

Depending on this basic decision the law will have to make sure that

competences of the ODC and the procedure between ODC and the Disciplinary

Committees are harmonized.

x x xKJCL,

KPCL

3, 6,

13,

14,

18,

22

N Action point: The laws need to be amended accordingly. The status of this recommendation remains unchanged.

55


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

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the

r

Stat

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of

Im-

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me

nta

tio

n



I 119

Nature and task of ODC as body and qualifications, selection and terms of ODC

staff

The ODC is the competent body for investigation in disciplinary issues of judges

and prosecutors. The tasks and responsibilities of ODC and of its staff need to be

established by law and should cover at least the following aspects:

• competences and responsibilities of ODC

• qualification of ODC staff, taking into account that the Director and the

Disciplinary Counsels/Prosecutors should be experienced judges or prosecutors

with at least 8 years experience, who should be seconded by joint decisions of

both Councils based on objective criteria referring to merits and an open

procedure

• Qualification of supporting ODC staff

• selection, term, responsibility and disciplinary liability of ODC

Director/Counsels/Prosecutors/staff

• suspension of the Director and the Counsels

• tasks and the power of Director/Counsels/Prosecutors, to take all the necessary

measures to ensure proper investigation

• conflict of interest and prevention from duties of

Director/Counsels/Prosecutors

• reporting of ODC

• co-operation with other bodies

• Budget of ODC

• communcation with the public (spokesperson, which kind of information shall

be disclosed, including as a rule beyond the confirmation or denial of the

existence of a complaint, explanation of the general procedural steps of the

investigation taken by ODC and requirement of not having a precipitated trial by

the public opinion etc)

x xKJCL,

KPCL

14,

20,

22

N

Implemented: Some basic provisions are already contained in KJC/KPC

Law.

Action point: a separate law governing the scope, repsonsibilites of ODC

as body, it s staff are needed.

The status of this recommendaiton remain unchanged.

The Draft Law on the ODC and a Concept document

supporting the Draft Law were drafted with the Project

experts' contribution in 2015. However the Draft Law on

the ODC is still under review and discussions in the MoJ.

56


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

Stat

us

of

Im-

ple

me

nta

tio

n



I 120

Basic provision on investigation procedure

The law should contain at least the follwing basic provisions referring to the process of

investigtion:

• scope, definitions and general principles (independence, impartiality, confidentiality, non-

discrimination, presumption of innocence, compulsory investigation, ...)

• file keeping and confidentiality (direct access to all evidence collected during the

(preliminary) investigation by judge/prosecutor implies, necessarily, the existence of records

(written, audio or video) of witness’ testimonies during the investigation, all evidences, etc)

• statute of limitation

• defintion of a complaint, anonymous complaints, consequences of a withdrawal

(complainants should not have a right to initiate or insist on disciplinary actions but they

have be informed on the final outcome), rule on when to reveal or not to reveal the identity

of the complainant

• criteria for admissibility

• case assignment

• initial review and assessment of complaint

• dismissal of a complaint with the possibility of a review by the Councils

• preliminary examination of a complaint

• rejection of the complaint after a preliminary examination with a possibility of a review by

the Council

• decision to open an investigation based on a complaint or ex officio

• investigation, rights and obligations of subjects, interview, evidence taking

• suspension of investigation

• closure of investigation with a review procedure to the Council

• recommendation to initiate a disciplinary proceeding and content of a recommendation

• representation of ODC before DC, re-referral of a case to ODC

• transitional provisions

x xKJCL,

KPCL

2, 3,

6, 9,

13,

14,

22

NImplemented: Only few provisions are contained in the KJC/KPC Law.

Action point: a separate law governing the investigation procedure are

needed.

See above the comments on R.119

57


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

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n



I 121

ODC's functioning

ODC as any other independent institution may issue internal regulations on it's

functioning and organisation.

Internal regulations should establish rules for case assignment.

Regulations (with effect to third parties) should not repeat what is already

established by law, not contain job descriptions, not provide rights and

obligations, which need to be established by law.

x x x xKJCL,

KPCL

RoL,

20N

Action point: The ODC is recommended to issue internal regulation on

it's organisation and functioning.

The Councils are recommended to respect the independence of ODC

established by Law.

Clearer rules on the competence of ODC as independet body need to be

established by law, in particular the meaning of Articles 33/43 in

conjunction with Articles 36/46 KPC/KJC Law should be clarified.


I 122

Recruitment of ODC staff

ODC, KJC, KPC and competent bodies for the recruitment of civil servants are

recommended to establish a common understanding on how to interpret the

laws and by-laws regarding the recruitment of ODC staff. Clearer provisions in

the law in this regard are needed.

x x x xKJCL,

KPCLBP N

Action point: Elaboration of a common understanding on how to

interpret the laws and by-laws regarding the recruitment of ODC staff is

needed.

Revision of the laws in order to establish a clearer basis for the

recruitment of ODC staff is pending.


I 123

File keeping, records and communiction with parties

ODC, the Disciplinary Committees and the Councils are recommeded to ensure a

proper file keeping and to revise it's standard operational procedures in order to

fulfil the principles and standards applicable.

x x x BP, 9 P

Implemented: Standards of file keeping were addressed in the training

provided by the project and recommended in the 3 Manuals for

KJC/KPC/ODC and respective forms and templates.

Action point: Further attention on the improvement of the performance

in the investigation and disciplinary procedure and practice will be

needed.

The SOP and recommendations in regard with the file

keeping, records and communication with parties

elaborated by the Project and included in the pilot

trainings of the Project are partially used by the KJC,KPC

and ODC.

II

&

III

124

Admissibility, rejection without investigation/hearing

It is recommended to include admissibility criteria for the

investigation/disciplinary proceeding and to clarify when a procedure may be

decided without a investigation/hearing, i.e for example lapse of statute of

limitation and death of the suspected. Resignment/retirement/leave of the

suspected should not be a reason for closing the investigation or the disciplinary

proceeding.

x x xKJCL,

KPCL

2, 6,

9, 22N Action point: The laws need to be amended accordingly.


recommendation. The status of this recommendation

remains unchanged.

58


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

Stat

us

of

Im-

ple

me

nta

tio

n



II

&

III

125

Statute of limitation

It is recommended to introduce a statute of limitation. In Europe these vary

widely. Rules need to be introduced when the limitation period starts to run, on

interruption in case of a repetiton and on suspension in case of

criminal/civil/administrative proceedings relating to the same facts.

x x xKJCL,

KPCL

2, 9,

22P

Implemneted: Both Councils have put forward a policy recommendation

to introduce a statute of limitation.

Action point: The revision of the law is pending.

The recommendations has been implemented partially

through the amendment process of the Law on KJC and

Law on KPC, in force since 15 July 2015. The

recommendaion is reflected in article 15 of the amended

law on KJC and article 17 of the amended law on KPC. In

both cases, a status of limitation for discipliarny

investigaiton and procedure has been set up. However,

due to the lack of a policy analysis prior the law

amenmends reflected in the statute of limitation a

transitional provision for the pending cases has not been

foreseen. Thus, a lot of cases have to be dismissed based

on the new law provisions.

II

&

III

126

Change in the scope of subject matter or widening of the scope of subject

matter

At any stage of the investigation and the disciplinary proceeding new evidences

may make a change in the scope or widening the scope of the subject matter

necessary. Respective rules on how to proceed need to be established by law. In

the phase of investigation a respective decision needs to be taken and the

concerned judge/prosecutor needs to be informed. In case of such event

occuring during the disciplinary proceeding the Disciplinary Committee shall be

required to refer the case back to the ODC if further investigation is necessary.

Where no further investigation is needed the concerned judge/prosecutor needs

to be informed and given sufficient time for presenting his/her evidences. Where

this occurs during a hearing, the hearing as to be suspended.

x x xKJCL,

KPCL

RoL,

1. 9N Action point: The laws need to be amended accordingly. The status of this recommendation remains unchanged.

II

&

III

127

Time lines

The time lines for opening investigation, holding a disciplinary hearing,

deliberations, for adopting the decision and for the execution of the sanction

should be established by law.

x x xKJCL,

KPCL

2, 9,

17,

18

P

Implemented: The laws contain rules on the time lines for the hearing

and for the submission of the proposal of dismissal and for the appeal. Action point: A preseciption period for establishing the decision should

be included in the law.

. The status of this recommendation remains unchanged.

59


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

r

Stat

us

of

Im-

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tio

n



II

&

III

128

Rights of judges/prosecutors subject to disciplinary proceedings

The law has to establish at least the following rights of the judges/proscutors

subject to the disciplinary proceeding:

• Along with the copy of the decision on opening a disciplinary proceeding, the

judge should be expressly notified to present, in a time limit, its written defence,

call a restricted number of witnesses, attach documents or require other

evidence measures;

• The charged judge/prosecutor may be assisted by a lawyer and the

judge/prosecutor/lawyer or representative should have direct access to the files

and material of the preliminary investigation, in the same time limit;

• The adversarial principle has to be respected.

• The judge/prosecutor is to be invited to provide the own statements/evidences

and other means of defense on the facts;

• The hearing should be public as a rule, with the exemptions allowed by

international law, and the law should expressly assure the right to the

judge/prosecutor, his lawyer or representative to be present during the hearings

and examine the witnesses.

• The decision has to be reasoned and the sanction in proportion to the

seriousness of the offence and be made public;

• An appeal has to be foreseen.

x x xKJCL,

KPCL

1, 3,

6, 9,

13,

14,

18,

22

P

Implemented: KJC/KPC Law foresee access to the case files, assistance by

a lawyer and self-defence.

Action point: the rights should be more clearly defined and an appeal has

to be introduced.

Art 15 of the LA-LKJC and Art 17 of the LA-LKPC set a statute of limitation for disciplinary cases, with the following amendment::5. The Proceedings shall not be initiated and implemented in the Commission after the expiry of one (1) year from the notification received in the Office of Disciplinary Counsel for the alleged violation and five (5) years from the date of the alleged violation

II

&

III

129

Disciplinary hearings

Basic rules on the disciplianry hearing, on when it should be open and under

which conditions it shall be closed and on the interruption of hearings shall be

included in the law. Hearings - as a rule - should be open, however under specific

cirumstances (for example public order, national security, protection of privacy)

it should be possible to close it for the public.

x x xKJCL,

KPCL

1, 3,

6, 9,

13,

18,

21,

22

P

Implemented: KJC/KPC Law foresee that in general meetings shall be

open.

Action point: Respective provisions have to be included in the law.


recommendation

60


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

d/o

the

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Stat

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of

Im-

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n



II

&

III

130

Minutes of the hearings

From each hearing minutes should be established. The Disciplinary

Committees/Councils are recommended to ensure that the minutes are signed

by the parties present in the hearing. In this way the proceedings ensure

observance of the parties’ rights and legal interests. They could eventually make

their remarks if the transcript is not correct and/or ask for

correcting/supplementing certain parts of the transcript if not correctly written

down. In case the audio recording is not clear in certain passages this shall be

identified in the transcript. The parties may not add new elements, as the

hearing is closed, however, this approach would ensure the correctness and

value of the records/transcript as one of the main evidence in the decision

making by the DC, KJC/KPC. This should be foreseen also in the laws.

x x xKJCL,

KPCLBP P

Implemented: The minutes are regularly elaborated as a transcript from

the hearings. The need of a signature is clearly contained in the Manuals

elaborated by the Project and was subject of discussion in the trainings.

Action point: The responsible bodies will have to ensure that the parties

are informed of the availibity of the minutes and are requested to sign

them. The laws need to be amended accordingly.


II

&

III

131

Decision and deliberation

For the final decision, the engaging of experts, the definition of the subject of the

experts’ opinion, the interruption of a hearing, a decision of the DC/KJC/KPC shall

be necessary. Any member of the DC/KJC/KPC may at any time request

respective decisions. The law should foresee that besides the final decisions the

decisions of the DC/KJC/KPC in the course of the procedure shall not be subject

of an appeal.

It shall be explicitly stated that after having considered all facts and evidences the

DC/KJC/KPC shall reject the recommendation of the ODC in cases defined by law

or shall impose a disciplinary measure.

x x xKJCL,

KPCL

BP, 3,

9, 11

NAction point: The laws need to be amended accordingly.

The respectve amendments of the LKPC and LKJC (Art.16

LA-LKJA+C and Art. 17, LA-LPKC regulate partially the

Council's competneces in case of appeal and the content

and publication of the final decisions. However the other

aspects of the recommendation are not taken into

concideration by the law amendments.

II

&

III

132

Determining the disciplinary measure

The law should list the elements which have to be considered when determining

the disciplinary measure, like the degree of disciplinary liability; the motives for

committing the act; the previous work and behaviour of the judge or prosecutor;

the intensity of danger or injury to the protected value; the circumstances in

which the act was committed; and the personal circumstances of the respective

judge or prosecutor and his or her behavior after the respective conduct. Also

the mitigating and aggravating factors should be listed in the law.

x x xKJCL,

KPCL

2, 3,

6, 14,

22

N Action point: The laws need to be amended accordingly.No amendment was made to reflect this

recommendation

61


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

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dar

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of

Im-

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n



II

&

III

133

Disciplinary measures

It is recommended to increase the number of sanctions in order to ease the

application of the principle of proportionality. The following measures could be

considered:

• A written warning which shall not be made public;

• Public reprimand;

• Reduction in salary up to a maximum of 50% (fifty per cent) for a period of up

to one (1) year;

• Temporary or permanent transfer to another court or prosecutor’s office;

• Demotion of a Court President to an ordinary judge or the Chief Prosecutor or

Deputy Chief Prosecutor to an ordinary prosecutor;

• Removal from office.

The laws need to clarify under which conditions which measures are to be

considered effective, deterrent and proportionate.

x x xKJCL,

KPCL

2, 3,

5, 6,

9, 14,

15,

17,

22

P

Implemented: KJC/KPC Law contain a list of disciplinary measures.

Action point: More measures are recommended and a clarification is

needed on when which measure needs to be applied.


recommendation

II

&

III

134

Suspension from the office

The Law should clearly state that the suspension may be imposed only in cases of

severe misconducts (by reference to the sanction that might be imposed) and the

continuation in office may be prejudicial to the investigation of the case, to the

service or to the prestige and dignity of the function. Moreover, the Law should

clearly stipulate that the enforcement of the suspension has to be carried out in

a manner that ensures the safeguard of personal and professional dignity of the

judge/prosecutor. A maximum suspension time has to be established by Law (for

example no more than 180 days; the former UNMIK/REG/2001/8 has foreseen a

90 days limit for temporary suspension). Clear procedural rules and competences

need to be established.

x x xKJCL,

KPCL2, 22 N Action point: The laws need to be amended accordingly.


recommendation

62


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

ed

lega

l act

Inte

rnat

ion

al

stan

dar

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the

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us

of

Im-

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tio

n



II

&

III

135

Urgent actions

The decision on the suspension is not necessarily linked with a decision on the

disciplinary liability. KJC/KPC Law clearly refer to any stage of the investigation or

the disciplinary proceeding and enable the Disciplinary Committees to act and

decide on a suspension without any determination of a disciplinary liability. This

enables the competent bodies to react appropriately and expediently in cases in

which the behaviour of a judge/prosecutor risks to damage the reputation of the

judicial/prosecutorial system as such. It is of course recommendable to act as

expedient as possible, however there is no need to hurry to an extent risking an

infringement of fundamental rights.

x x xKJCL,

KPCL

RoL,

1, 2N

Action point: The KJC/KPC Law need to be amended as to provide a

proper basis for suspensions. Article 23 KPC's Regulation on the

Performance of the Disciplinary Committee should be repealed

completely.

KPC/KJC are recommended to react in urgent cases by applying the

suspension procedure and not by hurrying up the disciplinary proceeding

to an extent infringing fundamental rights.


recommendation

II

&

III

136

Reference to different types of disciplinary misconduct in the decisions

The KJC/KPC Law foresee different types of misconduct. The decisions have to

clearly refer to one or more of these types listed in the law. The case law should

establish clear lines between the different misconducts so that the same/similar

behaviours are always subsumed under the same type of misconduct. The

following types are foreseen in the law:

• final decision for a criminal offense

• negligence in performing

• a failure to perform

• an abuse of the function

• failure to perform functions independently

• failure to perform functions impartially

• breach of the code of ethics (see recommendation above)

x xRoL,

1N

Action point: A revision of decisions has revealed a non unified

application of the law. A consistent case law should be established. The

Disciplinary Committees and the Councils are recommended to use the

checklist on the classification of a misconduct elaborated by the Project

and contained in the Manual.


The checklist elaborated by the Project and diseminated

to the KJC, KPC and ODC. It is also incuded in the training

programs. The implementation of the Checklist will

facilitate the persons and bodies in charge with

disciplinary proceedings.

63


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

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lega

l act

Inte

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stan

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Im-

ple

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II

&

III

137

Content of a Recommendation of ODC and a Decision of the Disciplinary

Committees/Councils

The structure of the Recommendation of the ODC and the decisions in the

disciplinary proceedings should follow the same pattern and contain at least:

• clearly establised subject matter citing the respective law provision/type of

misconduct

• disciplinary measure proposed/imposed citing the respective law provision

• course of the procedure (brief of steps taken)

• motivation, including

• legal basis

• summary of proven facts

- consideration of evidences/facts (missing in most decisions!)

- subsumption (explaining why and how the facts meet all elements of the law,

citation of case law, etc)

• instruction on the legal remedies (only decision)

x x11, 9,

22P

Implemented: Main elements are already contained in the

recommendations/decisions.

Action point: There is room for improvement. Well structured and clearly

etablished Recommendations facilitate the procedure and decision

making before the Disciplinary Committees/Councils. Well structured and

clearly reasoned decisions will help to ensure a unified application of the

law and to establish case law.

The amendments of teh LKJC/LKPC (Art 16 of the LA-LKJC

and Art 17 of the LA-LKPC) have stated in general terms

what the content of disciplinary decisions should include,

where in one provision the following is described:

" Such a decision of the Council should be reasonable

regarding the proofs administered by both parties,

interpretation of alleged violations and measure of

argumentative conviction that shall suit achievement of

aimed determination with this law. In such a case, the

decision of the Council should reflect, and justify

application of proportional principle in deciding for such a

matter. Such a decision becomes transparent based on

law conditionality over personal data of the Republic of

Kosovo". Further support to the ODC, KJC and KPC based

on the SOP provided by the Project is needed.

II

&

III

138

Appeal to an independent court

An appeal procedure against decisions of the Councils in the disciplinary area

should be introduced. The Supreme Court seems to be the most appropriate

appeal court against decisions of the Councils. An appeal as review on the merits

which allows a full review of the case, including the facts is recommended. The

appeal should be allowed to the concerned judge/prosecutor and the ODC: An

appeal should have suspensive effect, except in most serious cases. The appeal

deadline should be more than 2 weeks.

Only when a final decision establishes the removal of the judge/prosecutor from

the office, KJC/KPC should propose the removal to the President.

x x xKJCL,

KPCL

2, 3,

4, 6,

9, 11,

13,

16,

17,

18,

20,

21,

22

P

Implemented: both Councils have put forward a policy recommendation

foreseeing an appeal procedure to the Supreme Court.

Action point: The laws amendment is still pending.


64


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

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lega

l act

Inte

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II

&

III

139

Execution of the final decision

The law should make clear that the Council shall be responsible for processing all

sanctions established by a the final decision. The KJC/KPC shall submit the final

decision on the recommendation to remove a judge or a prosecutor to the

President.

The prosecutor or judge shall be notified by the Council regarding the decision of

the President on the removal.

Furthermore, the law should explicitly state that the Councils shall execute the

final decisions within a specified time, like:

• 3 months for admonition or reduction of the salary;

• 6 months for transfer or demotion sanction;

• 1 year for suspension or removal

x x xKJCL,

KPCLBP, 9 N Action point: The laws need to be amended accordingly. The status of this recommendation remains unchanged.

II

&

III

140

Publication of disciplinary decisions

The law should clearly stipulate in which manner and where final decisions of

the DC/KJC/KPC and/or the court of law should be published (for example: at the

website of the Councils in an anonymized manner, taking into account that

hearings as a rule should be open). In such a way not only the judiciary, but also

the general public is informed of the way in which the proceedings have been

conducted and to show that the judiciary does not seek to cover up reprehensive

actions of its members.

x x xKJCL,

KPCL

1, 11,

13,

22

N Action point: The laws need to be amended accordingly.

The amendments in Art. 16 of the LA-LKJC, and Art.17 of

the LA-LKPC have foreseen only in general terms the

publication aspect of disciplinary decisions - see above

R.137

II

&

III

141

Disciplinary record

In some European countries the sanctions on the disciplinary record of a

judge/prosecutor are automatically expunged after a certain period of time,

which normally is in correlation to the severity of the sanction. In others

countries the judge or prosecutor may apply for an expungement. In such cases

the Council or the competent disciplinary court has the discretion to decide

whether to expunge the record or not.

In other countries it is argued that the automatic expungement after certain

period of time will lump all the judges/prosecutors together: those who always

had an exemplary conduct during their careers and those who repeatedly

committed disciplinary offenses.

The law should establish a legal basis for Kosovo.

x x xKJCL,

KPCLBP N Action point: The laws need to be amended accordingly.


recommendation

65


om

po

ne

nt

No

of

Re

c.

Recommendation KJC

KP

C

OD

C

Mo

J/A

sse

mb

ly

con

cern

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lega

l act

Inte

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II

&

III

142

Documentation of the case law

Disciplinary decisions are of a very sensitive nature. The uniform interpretation of

the law and equal treatment of all judges/prosecutors is necessary in order to

ensure human rights and to enhance the trust of the public into the system. It is

recommended to improve the documentation of the decisions, to elaborate key

words, key sentences of the decisions and to make this documentation available

to all judges/prosecutors and the public.

x xBP,

11N

Implemented: The documentation so far is a basic collection of decisions.

Action point: The documentation of the decisions should be significantly

improved.


Abbreviation: Colours:

BP ………Best Practice

CL………..Law on Courts

Const … Constitution pink …… priority areas where law amendments are needed

DC……….Disciplinary Committee green ….prioity areas on the operational level

KJCL………Law on the Kosovo Judicial Council

KPCL…….Law on the Kosovo Judicial Council

ODC……Office of the Disciplinary Counsel/Prosecutor

RoL ….. Rule of Law Principle

SPL………Law on State Prosecutor

LA-LKPC -Law on Ammending and Supplementing the Law on the KPC

LA-LKJC - Law on Ammending and Supplementing the Law on the KJC

Y………….Fully implemented

P…………Partially implemented

N………..Not implemented

66

catalogue of recommendations - european external action ... · the first version of the catalogue...

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