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Ombudsperson Institution of Kosovo*

Independence and effectiveness of the NHRIs

International accreditation status and SCA recommendations

Due to the specific international standing of Kosovo*, the Ombudsperson Institution is unable to seek accreditation before GANHRI’s Sub-Committee on Accreditation, organized under auspices of UN OHCHR. The Institution is a non-accredited, associate member of ENNHRI. It has worked for the promotion and protection of a wide range of human rights issues in Kosovo*.

Developments relevant for the independent and effective fulfilment of the NHRIs’ mandate

The Ombudsperson Institution of Kosovo* was established in year 2000. The Constitution of the Republic of Kosovo*, provides the Ombudsperson Institution as a constitutional category and as an independent institution with the mandate to monitor, protect and promote the rights and freedoms of individuals from unlawful or improper acts or failures to act by public authorities.

Through the years, this institution faced a lot of challenges, both in terms of lack of awareness on the mandate of the institution by and negligence from the authorities for matters raised by the Ombudsperson within its independent mandate, but also with limited resources, adequate office spaces, budget etc. However, our institution in partnership with a lot of other international institutions and organisations based in Kosovo*, with the aim to be in full compliance with Paris Principles on National Human Rights Institutions, has worked very hard to change the legislation upon which the Ombudsperson Institution operated. This was achieved on 2015, when three basic new human rights laws entered into force: Law on the Ombudsperson, Law for Protection from Discrimination and Law on Gender Equality, which vested new mandates and additional competences to the Ombudsperson Institution of Kosovo*.

The new Law on the Ombudsperson was drafted having in mind the best international standards on the national human rights institutions and can be considered a model legal framework for other similar institutions. It has strengthened the role of this institution, adding provisions that guarantee organisational, administrative and financial independence. Furthermore, this law has extended functional immunity not only for the Ombudsperson and his deputies, but to its entire staff. All authorities are obliged to respond to the Ombudsperson on his requests on conducting investigations, as well as provide adequate support according to his/her request, and furthermore the government and the municipalities are obliged to provide space or offices suitable for work in public ownership in order to enable effective performance of the functions and responsibilities of the Ombudsperson Institution of Kosovo* (OIK) and most importantly guarantees financial independence. In particular, Article 35 of this law provides that “Regardless of the provisions of other Laws, the Ombudsperson Institution prepares its annual budget proposal and submits it for approval to the Assembly of the Republic of Kosovo*, which cannot be shorter than previous year approved budget. Budget may be shortened only by the approval of the Ombudsperson.“

This human rights law package aims at increasing the efficiency of the procedure by which the Ombudsperson deals with complaints, setting forth a faster decision making with regards to the assessment of the admissibility criteria (10 days, compared to 30 days provided in the previous law), the establishment of the National Torture Prevention Mechanism (NTPM), the extension of the scope of the mandate of the Equality Body to deal with cases of discrimination relating to the behaviour not only of public authorities but also private actors, penalties for non-cooperation with the Ombudsman, initiation of proceedings by the Ombudsman, representation by the Ombudsman in his capacity as Amicus Curiae in court proceedings dealing with human rights, issues of equality and protection from discrimination, etc. 

Since the start of implementation of this new legislation, all the challenges related to independence and functionality of the institution seem now overcome. We experience a better cooperation with all the authorities: the huge increase in the implementation rate of our recommendations can be considered as an indicator of such increased cooperation.

The Ombudsperson has increased the public trust in the institution. This was indicated in the Country Report from the European Commission and also in the Balkan Barometer for 2017 and 2018 of the Regional Cooperation Council which ranked the Ombudsperson Institution of the Republic of Kosovo* as the most trustworthy from institutions listed in the country and in the region, which marks another notable success of OIK’s role in promotion and protection of human rights in the country.

Changes in the national regulatory framework applicable to the NHRI change since the last review by the SCA

The Ombudsperson Institution of Kosovo* every year is invited and participates in all the meetings and conferences organized from the Global Alliance of National Human Rights Institutions (GANHRI, former ICC) with the status of an observer. On 14th November 2012, we addressed a formal request for accreditation; however, the Sub-Committee on Accreditation has responded that GANHRI statute allows membership and accreditation only to the countries that are member of United Nations. Therefore, as the Republic of Kosovo* is still not a member of the United Nations, due to this political barrier, the Ombudsperson Institution continues to be only an observer in this organisation. 

At the same time, we are happy to report that the interaction and participation in GANHRI meetings has been a good opportunity to prepare ourselves to respond to future requirements when the Ombudsperson Institution of Kosovo* will be ready for the accreditation process.

Human rights defenders and civil society space

The Ombudsperson Institution of Kosovo* has an excellent cooperation with civil society organizations and considers them as a good partner in working together for the advancement of the respect for human rights in Kosovo*. Therefore, a lot of mutual activities on different matters of human rights has been organized through the years. 

Freedom of association 

In March 2019, the Law no. 06 / L – 043 on Freedom of Association in Non-Governmental Organizations has entered into force by abrogating earlier law of 2011. Actually, the law was adopted in 2018 by the Assembly of Kosovo*, but some provisions of the law were found to limit and even endanger the organizational sector of NGOs. Upon NGOs’ response and the President’s assessment, the Law was sent back to the Assembly for review and the remarks were taken in consideration. The new law, as such, represents a good opportunity for the development of the non-governmental sector in Kosovo*.

When it comes to civil society space, the Ombudsperson Institution has raised its voice in different occasions in making for them a better working environment. In 2018, we even published a report with recommendation on the freedom of association, which was based on two complaints regarding the suspension of the activity of nongovernmental organizations, based on a request from the competent security body. In this report, the Ombudsperson considered that the suspension of the activities of NGOs solely on the basis of suspicions that their activity does not comply with the legal and constitutional order of the Republic of Kosovo* and with international law, without any proper investigation by the prosecuting authorities, represents a direct interference with the freedom of association and poses a risk that the state may, at any time, interfere on the activities of any other NGO.

The right of access to public documents 

The right of access to public documents is guaranteed by the Constitution of Republic of Kosovo* and other relevant international instruments directly applicable in Kosovo*. In addition, the Law on Access to Public Documents that entered into force in July 2019, guarantees the right of every person, without discrimination on any grounds, to access public documents produced, received, maintained or controlled by public institutions, as well as the right to re-use the public sector documents. The competence of the Ombudsperson in this regard is to assist citizens in realisation of their right for access to public documents. 

During the year 2019, the trend of increasing the number of complaints submitted to the Ombudsperson regarding allegation of denial of the right of access to public documents has continued. During 2019 there were 106 complaints filed within the Ombudsperson Institution, of which 99 were initiated for investigation. Out of 99 investigated complaints that were filed for violation of the right of access to public documents, 73 were filed from NGOs and the media, while 26 from natural persons. 

Our investigations on these complaints revealed that there is a lack of classification of documents, lack of capacities of responsible officials in addressing requests for access to public documents, and lack of will of law enforcement institutions, which results in the violation of the right of access to public documents. Although the response of the institutions confirming the receipt of the request is often quick and within the legal deadlines, the decision to grant or refuse the request is often not taken within the deadlines set by law, despite the importance of prompt delivery of information/documents. Furthermore, public institutions often fail to provide a law-based justification for not allowing/restricting access. The Ombudsperson emphasized to the authorities the necessity, in accordance with applicable legal provisions, to classify the documents as soon as the information is produced, as this is the only manner for avoiding arbitrary decisions on restriction or denial of access and would facilitate the process of handling requests for access to public documents addressed to institutions.

Checks and balances

Separation of powers/constitutional review

The Ombudsperson Institution during its mandate of monitoring human rights compliance with Constitution and other international standards has found evidence of practices that erode the separation of powers, as it is the case with the Law on Public Official and the Law on Salaries in the Public Sector, which we sent for review in the Constitutional Law of the Republic of Kosovo* and also required the imposition of interim measures in both laws, in order to avoid the irreparable damage that could be caused by the application of these laws, in particular the Law on Salaries.

The Law on Public Officials grants the Government of the Republic of Kosovo* the competence to establish the legal basis for the employment of public officials in the institutions of the Republic of Kosovo*. This also concerns public officials in independent institutions, including the Ombudsperson Institution, and other entities in the public sector, without taking into account the specificities of the constitutional status of such entities. The Ombudsperson considered that the Law on Public Officials did not take into account the fact that different entities in the public sector have their organisational, functional and activity issues specifically regulated, in accordance with the Constitution of the Republic of Kosovo* and their organic laws.

The Law on Salaries in Public Sector, inter alia, determines the salary and reward system for public officials, who are paid by the state budget and the rules for determining the salaries of publicly owned enterprises‟ employees in Kosovo*. The Ombudsperson considered that this law and Annex one (1) of this law have failed to convey the constitutional spirit in terms of separation of powers, equality before the law, and the guarantee of property rights. Furthermore, the Ombudsperson considered that it is incompatible with the principles of the rule of law, due to deficiencies in terms of its clarity, accuracy and predictability. The Ombudsperson has received more than 40 complaints from various public sector entities filed against the Law on Public Sector Salaries, including complaints from health, education, police and civil service employees’ unions.

Parliamentary functionality and oversight function

The Assembly of Kosovo* during the review and adoption of laws in 2019 has adopted 29 laws. The Ombudsperson considers that the small number of adoption of laws is a result of the irregular functioning of the Assembly, which during 2019 held a relatively large number of extraordinary sessions which were considered an obstacle to the proper functioning of the Assembly. The Ombudsperson noted that at the moment of dissolution of the Assembly, on 22 August 2019, 53 draft laws remained in the process of review and adoption. Proceeding of such a small number of laws is an indication that the Assembly of Kosovo* has not been able to properly exercise its constitutional function with regard to adopting laws. It is worth mentioning that during last year, none of the laws adopted by the Assembly of Kosovo* represented legislation of vital interest.

Increased executive powers

The number of recommendations that the Ombudsperson has addressed to the Government and its stakeholders is 41, out of which only 9 have been implemented so far, while others either have not been implemented or are pending implementation. The accountability of the Government towards human rights issues remains low. Moreover, many of the issues presented by the Ombudsperson for the reporting period of the previous year (2018), regarding executive power have remained unaddressed by the relevant authorities, but they also have not been reviewed by the Assembly of the Republic of Kosovo*, although it has been submitted within the deadline.

Functioning of justice systems

When it comes to judicial system, the Ombudsperson Institution has a limited mandate. It may only make general recommendations on the functioning of the judicial system, without interfering in legal cases and legal proceedings being conducted before the courts, except in cases related to allegations on the administration of justice, namely delays in court proceedings, and in the execution of judicial decisions. 

Based on the number of complaints submitted to the OIK during 2019, citizens continue to face delays of several years regarding adjudication as well as non-enforcement of final court decisions which in turn affect the realisation of their rights. Moreover, the Ombudsperson notes that citizens perceive that judges lack impartiality during the adjudication of their cases. Due to the above mentioned, the Ombudsperson has received requests to monitor court hearings.

Delay of judicial proceedings 

As in previous years, the Ombudsperson continues to receive complaints against courts regarding delays in court proceedings. Complaints are mainly related to procedural delay regarding disputes of civil, property or employment relationship nature. This comes as a result of the large number of old cases pending and the presentation of new cases. 

The Ombudsperson observed that when it comes to procedural delays, particularly in cases that bounce from one instance to another during the review process or in situations when cases are returned for retrial, the tendency of the courts is to calculate the period of deliberation from the day when the case was referred to that court, which is not in compliance with the ECtHR case law. Another factor contributing to prolonged judicial procedures before courts is the registration of cases returned for re-trial with a new number, which in fact does not represent the accurate timeframe when the lawsuit was initiated before the Court and causing new delays, thereby resulting in the case not being addressed within a reasonable time-limit. In this regard, the Ombudsperson in 2018 recommended the Kosovo* Judicial Council (KJC) to stipulate with an internal act that cases returned for re-adjudication should be treated with priority over new claims. This recommendation has received positive feedback from the KJC and is the way to its implementation. 

Non-execution of court decisions 

The Ombudsperson has received a considerable number of complaints during 2019 with regard to the non-execution of court decisions. The number of executions for civil cases at the national level remains low, which is of concern for the Ombudsperson. The Ombudsperson has drawn attention of the relevant authorities with several reports with recommendation that the enforcement of final decisions is part to the right to a fair and impartial trial which obliges them to take the necessary measures for the implementation of this right. 

However, the number of complaints submitted to the Ombudsperson indicates that citizens have still huge difficulties in exercising and protecting their rights especially in the first instance proceedings before the Basic Court in Prishtina – Department for Administrative Matters. They are related to inefficiency of this court in administrative disputes. The investigations indicate that this court, when reviewing administrative disputes, in addition to delaying cases, does not decide on the substance of the case, but only on procedural violations, returning the case for decision-making to the administrative body, while administrative bodies during review mainly render rejecting decisions and the case ends in court again. This situation is concerning for the Ombudsperson as citizens are deprived of their right to effective remedies.

Media pluralism

During 2019, there were no complaints filed within the Ombudsperson Institution regarding the insufficient protection or attacks on journalists. The complaints filed within the Ombudsperson institution by the media and journalists were mostly with regard to the access to public documents. 

However, in the end of 2017, the Ombudsperson Institution have published an own initiative report with recommendations in relation to the freedom of media and safety of journalists. This report was initiated as a response to concerns about violation of freedom of expression, with an emphasis on media and safety of journalists in Kosovo* and about the challenges and problems in this field, especially the lack of judiciary efficiency for addressing such cases. Based on the analysis and findings, the Ombudsperson provided recommendation to the relevant authorities to take necessary measures to ensure the freedom of media and the safety of journalists.

Report Ex. Officio in relation to the freedom of expression (media) and safety of journalists:

In-focus section on COVID-19 measures

Most significant impacts of measures taken in response to the COVID-19 outbreak on the rule of law in the country

There is no evidence for new laws adopted during the COVID-19 pandemic which could disproportionately interfere with human rights. However, a number of processes and practices can be reported on that could have interfered with human rights and eventually with separation of powers.

(1) On 23 March 2020, Kosovo* Government has issued the Decision No. 01/15 announcing the measures to combat and to prevent COVID-19, which included the imposition of curfews and the prohibition of public and private gatherings.
The President of the Republic of Kosovo* addressed the Constitutional Court requesting its constitutional assessment of the above mentioned Decision No. 01/15, alleging that this decision violates freedom of movement and freedom of gathering. The Constitutional Court asked the Ombudsperson Institution to give comments on the President’s referral to the Constitutional Court. The Ombudsperson in his comments provided that, according to the Constitution and international instruments for human rights, which are directly applicable in the Republic of Kosovo*, states have the right to limit some of the human rights. In this case, the right to life and public safety prevailed the freedom of movement and freedom of public gatherings. In principle, the Ombudsperson states the content of the decision seems to be sensible and even necessary in times of a pandemic as declared by the World Health Organization (WHO). However, the Ombudsperson stated that there might be a problem with the necessity and proportionality of the restriction of private gatherings, as this heavily interferes with Art.8 ECHR – protection of private life.

The Constitutional Court, on 6 April 2020 published the Judgement KO54/20 ruling that the Government Decision No. 01/15 is not compatible with the Constitution and declared the decision invalid. However, the Constitutional Court postponed the execution of its judgment until 14 of April 2020, considering the seriousness of the situation caused by COVID-19, in order to leave time for the Government to adjust the measures in accordance with the Constitution. Moreover, the Court requested from the Assembly to notify the Court of all steps taken by the Assembly of the Republic of Kosovo* following the publication of Judgment KO54/20. A few weeks later the Constitutional Court stated that it did not receive a response from Assembly. In this regard, the Court initially emphasized that the Assembly is obliged to determine the most appropriate mechanisms and authorisations, either through the amendment of existing applicable legislation or through the adoption of a new law, so that the relevant authorities, including the Ministry of Health, respectively the Government, take necessary measures to combat and prevent COVID-19 pandemics, in accordance with the Constitution and Judgment KO54 /20.

2) On 14 April 2020, the Ministry of Health issued 38 decisions for each municipality introducing measures for each municipality. The stricter curfew was imposed and some of the municipalities were put on quarantine. A group of 30 Members of the Assembly, referred three of these decisions for constitutional review. The Constitutional Court asked for the Ombudsperson for comments. The Ombudsperson sent the comments to the Constitutional Court, referring to his previous comments on the case referred to the Court by the President, with a comparative analysis of the other national institutions working on human rights, international organizations, international human rights NGOs and their positions towards the human rights situation created by COVID-19. The Ombudsperson stated that there is a lack of parliamentary oversight on Government’s work. 

The Constitutional Court, on 5 May 2020 on the above-mentioned constitutional complaint, declaring it partially unconstitutional. The Constitutional Court stated that: 

The Ministry of Health has acted in accordance with the authorisations specified in the Law no. 02/L-109 on Prevention and Fighting against Infectious Diseases in the right to freedom of movement of citizens of the three municipalities. However, the Court, ruled that administrative fines and relevant sanctions, imposed by the Ministry of Health are not compatible with the Constitution and Article 2 of Protocol No. 4 of the ECHR. The Court reasoned that administrative fines imposed by these three contested Decisions are not “defined by law” and, consequently, were declared unconstitutional.

The court, on the other hand, ruled that Decision on declaring the whole municipality as “quarantine zone”, is not in accordance the Constitution and Article 2 of Protocol No. 4 of the ECHR. The Court found that the Ministry of Health has exceeded the competencies set out through Law no. 02/L-109 on Prevention and Fighting against Infectious Diseases, and consequently “interventions” in the right to freedom of movement, through the quarantine of the entire municipality are not “defined by law”. The court clarified that according to the Law no. 02/L-109 on Prevention and Fighting against Infectious Diseases the “quarantine” may be ordered by the Ministry of Health, following the recommendation of the Public Health Institution, only for natural persons who are proven or suspected to have been in direct contact with sick persons or suspected of contagious disease. 

(3) When it comes to the lack of parliamentary oversight the Ombudsperson appeared in front of the Assembly Committee for Human Rights, Gender Equality, Missing Persons and Petitions to discuss about latest developments and asked the Assembly to assume its constitutional role in overseeing the Government’s work.

(4) On 2 April 2020, the Ombudsperson addressed a letter with recommendation to the Ministry of Infrastructure and Environment with regard to the protection of privacy of the citizens returning from other countries, through the flights organized by the Government of the Republic of Kosovo*, which were photographed in the lobby of the airport after their arrival, without obtaining their consent or disclosing the reason for the photo. Of concern was the publication of their photos on the Facebook page of the Ministry of Infrastructure, without any measure which would make it impossible to identify them.

Therefore, the Ombudsperson, in order to protect the rights of these citizens, and in particular the right to privacy and to avoid unintentional omissions in the administration of the process, recommended the ministry to duly inform the citizens for the purpose of the photograph and on the occasion of the publication of the photos, to protect the identity of the citizens.

The Ministry, after this letter with recommendation, removed the photos from their official website which would enable the identification of returned citizens and changed its practice accordingly.

(5) On 4 April 2020, the Ombudsperson through a public statement requests from media not to publish names of the persons in the quarantine. In this statement, the Ombudsperson emphasized that it sees with great concern publication of some news by portals which have published lists with tables containing names and surnames, as well as other information, concerning persons who have been ordered to be isolated in quarantine, due to coronavirus.

The Ombudsperson addressed portals with the request to remove this type of news so that they are not re-published by other portals. At the same time the Ombudsperson requested from media and journalists to do more for protection of personal data of persons in self-isolation, quarantine, those hospitalized and diagnosed with COVID-19, apart those given by person’s consent.

Media has playing a major role in these circumstances by placing journalists at the front line in order to disseminate accurate information to the public. Media have also their own liabilities to accomplish according to the Code of Ethics and other self-regulation documents. The Ombudsperson put emphases on the latest recommendations of the Press Council of Kosovo* (PCK) for all media regarding their reporting on the situation with COVID-19.

(6) On 15 April 2020, the Ombudsperson Institution of the Republic of Kosovo addressed a letter with recommendations to the Ministry of Health and National Institute of Public Health, which was based on a complaint lodged from a journalist with regard to the publication of their public announcements on their official websites not in accordance with the Constitution and the Law on the Use of Languages. These announcements were being published only in Albanian Language, although by Constitution and Law, the Serbian Language is also an official language in the Republic of Kosovo. The above mentioned authorities, has immediately taken measures according to our recommendation and published all of the future announcements in both languages.

(7) On 23 April 2020, the Ombudsperson of the Republic of Kosovo has addressed an opinion to the relevant authorities related to the requests for release of certain categories of prisoners at the time of global Coronavirus (COVID-19) pandemic.

This Opinion is based on the complaints of some prisoners who addressed the Ombudsperson with the request for early release or parole based on the situation in the country after the outbreak of COVID-19 infection cases, which was declared a global pandemic by the World Health Organization (WHO). WHO required undertaking of severe measures from states governments in order to prevent spreading of COVID-19. Such measures have been taken by the Government of the Republic of Kosovo as well. 

The Ombudsperson Institution in this opinion has reinstated the relevant international standards in the matter raised in the complaint received and called on the authorities to implement them.

(8). On 29 April 2020, the Ombudsperson issued a press statement related to the domestic violence during COVID-19 pandemics. The institution, has been notified on the increase of reported number of domestic violence cases. According to official data obtained from Kosovo Police, in March 2019, the number of reported cases was 124, while 169 cases were reported during March 2020. It is obvious that the number of reported cases of domestic violence has increased by 36% compared to the same period last year.

While health emergency caused slowdown of courts’ functioning and postponement of non-urgent court hearings, safety of the victim and her children should remain a primary concern for law enforcement institutions as well as judicial authorities for immediate actions, prevention and protection. Accordingly, state institutions remain committed to their liabilities to provide victims with appropriate and immediate protection from the risk of violence.

The Ombudsperson draw attention on state’s obligation towards international human rights standards, to exercise due diligence to prevent, investigate, punish and ensure compensation for acts of violence, pursuant to their obligations under the European Convention on Human Rights and Fundamental Freedoms.

In a situation of increased number of cases of violence, risk assessment and management for victims of violence remain essential. Attention also should be paid to the need for financial support on which many women will depend after being relocated to a shelter for victims of violence.

(9) Complaints

From March – June 2020, all Kosovo citizens arriving from abroad were placed in quarantine for 14 days. The Ombudsperson opened Ex Officio investigations based on the allegations that people placed in quarantine were discriminated regarding issuing decisions for certain persons to leave the quarantine. In the same period, we received additional complaints through the NPM from the sentenced prisoners, who asked for their sentence to be suspended due to COVID-19.

(10) Public appearances

During this period the Ombudsperson and other staff members of the institution has been invited in a lot of interviews in TV and radio related to COVID-19 pandemic measures and their impact on human rights. Such activities will continue in the future as well. 

(11) On 1 June 2020, the Ombudsperson Institution, resumed its work with full capacity in the central office in Prishtina and regional offices around Kosovo. Most of the restriction measures imposed by the Government of the Republic of Kosovo are now lifted.

Most important challenges due to COVID-19 for the NHRI’s functioning

The most important challenges due to COVID-19 for the Ombudsperson Institution of Kosovo* relate to the need for the Institution to function with only part of the essential staff at the office, while others working from home. This determined an overload to the staff who had to prepare the Institution’s reactions to public authorities, media and citizens on the several human rights issues raised in connection to the emergency measures decided by the government, including before the Constitutional Courts. 

Despite this, the Kosovo* National Protection Mechanism (NPM), based on the principle “do no harm”, had to suspend its monitoring activities to all places of deprivation of liberty until next decision. However, it continued its online monitoring through permanent contacts with relevant authorities on the situation of persons deprived of their liberty. Also, all persons deprived of their liberty, including those at administrative detention centres, asylum reception centres, social and psychiatric care centres, as well as quarantines, had the possibility to contact the NPM through phone number at their disposal every day, including weekends. But, being unable to contact directly persons deprived of their liberty was and still is one of the main challenges to conduct our NPM mission. Nonetheless, the authorities in the Republic of Kosovo* continue to provide to NPM full access and cooperation.

* This designation is without prejudice to positions on status, and is in line with UNSC 1244 and the ICJ Opinion on the Kosovo Declaration of Independence.