The Kosovo Assembly approved amendments to the Law on the Specialist Chambers on October 6, concluding consideration of an initiative aimed at changing the way the Specialist Chambers in The Hague operate.
Following the vote on the amendments, the measure was approved in its second reading. Initiated by the Democratic Party of Kosovo (PDK), it had been approved in its first reading on October 5.
The law does not abolish the Specialist Chambers, commonly known as the Special Court in The Hague, but affects several key aspects of their operation: their jurisdiction, the time period they cover, sentences, where those sentences are served, and the handling of cases that would fall outside their jurisdiction.
The PDK initiative came just five days after the September 16 judgment against Hashim Thaçi, Kadri Veseli, Jakup Krasniqi and Rexhep Selimi.
In the published document, the need for the amendments is linked to this judgment and to the Trial Panel’s findings regarding a “joint criminal enterprise.”
Thaçi and Krasniqi were each sentenced to 25 years in prison, Veseli to 18 years and Selimi to 13 years for war crimes, while all four were acquitted of crimes against humanity.
Allegations of organ trafficking were not part of the indictment against them, and none of them was tried on such charges. The judgment is not final, and the defence has announced plans to appeal.
But what exactly does the law change?
One of the main changes concerns the types of offences that may be dealt with by the Specialist Chambers.
The law seeks to link their jurisdiction to the specific allegations contained in the 2011 report of the Parliamentary Assembly of the Council of Europe.
Under the law, the Specialist Chambers would deal with offences directly related to allegations concerning the unlawful extraction, removal and trafficking of human organs, tissues or cells.
Their jurisdiction would also include killings, torture, and cruel or inhuman treatment at specific detention sites mentioned in the report, when directly linked to the alleged organ-removal operations.
This would mean removing from the Specialist Chambers’ jurisdiction other war crimes, crimes against humanity or acts of political violence that do not have such a direct connection.
How were the Specialist Chambers established?
The existing law gave the Specialist Chambers jurisdiction over alleged crimes committed from January 1998 to December 2000.
The new law seeks to limit this period to July 1, 1999 through December 31, 2000. This means that the period before July 1, 1999 would be removed from the Specialist Chambers’ temporal jurisdiction.
Changes are also sought regarding territorial jurisdiction.
Jurisdiction would be limited to alleged offences committed within the territory of Kosovo.
The Specialist Chambers have also dealt with allegations concerning crimes committed in northern Albania.
Another significant change concerns sentencing.
The law seeks to set the maximum sentence that may be imposed at 15 years’ imprisonment.
The document links this to the principle of the more lenient law — lex mitior — under which the criminal law that is more favourable to the convicted person is applied.
In the September 16 judgment, three of the four defendants received sentences exceeding the proposed 15-year limit.
The law provides that cases which, under the new jurisdiction, would no longer fall within the competence of the Specialist Chambers would be transferred to Kosovo’s regular judicial system.
The relevant case files, evidence and other materials would also be transferred. Trial panels would be required to reassess jurisdiction in each case within 30 days of the law entering into force.
In cases where an indictment contains charges that fall within the new jurisdiction as well as others that fall outside it, the proceedings would be separated. The part falling outside the Specialist Chambers’ jurisdiction would be transferred to Kosovo.
Individuals detained in cases that are transferred would be brought to Kosovo and, under the law, would have to appear before a judge within 48 hours for a decision on detention or other security measures in accordance with domestic law.
The law also provides for the possibility of appealing jurisdiction-related matters before the Supreme Court of Kosovo.
The amendments further provide that individuals convicted by the Specialist Chambers could serve their sentences in correctional institutions in Kosovo.
Those convicted by a final judgment would also be given the possibility of being considered for a presidential pardon by the President of Kosovo.
However, implementing this provision could raise legal issues.
Kosovo’s current Law on Pardon excludes from eligibility for pardon individuals convicted of certain offences against international law, while Kosovo’s Criminal Code includes war crimes within this category.
What happens to cases that are already under way?
According to explanations provided by the PDK, current appeal proceedings would continue within the existing structure of the Specialist Chambers.
If the Appeals Panel were to order a retrial, the new jurisdiction would then apply. If the case did not meet the new criteria, it could be transferred to Kosovo.
Therefore, the adoption of the law does not automatically mean that existing judgments would be overturned or that convicted individuals would be released.
Is the Assembly’s vote enough?
Not necessarily.
The Specialist Chambers were established on the basis of a constitutional amendment, a specific law and Kosovo’s international commitments.
Legal experts have warned that changes affecting their mandate could raise constitutional questions and issues regarding the country’s international obligations.
The Specialist Chambers themselves told Radio Free Europe that they were not consulted on the initiative.
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