12.03.2021. » 13:52
OP - ED Challenges and Difficulties of Legal Practice in Kosovo - Predrag Miljković
As a young state governed by the rule of law principles, Kosovo faces numerous challenges and difficulties. From the end of the war until today, we have been working on building a modern legal system based on the guidelines of all Western European countries. As part of the former Yugoslavia, Kosovo continues to cultivate this normative-legal approach to regulating and prescribing legal acts almost identically to all former Yugoslav states.
As a young state governed by the rule of law principles, Kosovo faces numerous challenges and difficulties. From the end of the war until today, we have been working on building a modern legal system based on the guidelines of all Western European countries. As part of the former Yugoslavia, Kosovo continues to cultivate this normative-legal approach to regulating and prescribing legal acts almost identically to all former Yugoslav states.
When it comes to the challenges and difficulties of legal practice, I would like to commence with organization of the courts in Kosovo. I consider it an excellent novelty that in terms of functional jurisdiction the courts are divided into Basic, Appellate and Supreme Court, unlike the previous division (Municipal, District, Appellate and Supreme).
This novelty from 2012 is important because Kosovo is a relatively small country in terms of geography and there is no need for former District (now Viši sud in the countries in the region, prim.red.) courts, and what was once decided by the District Court is now in the domain departments that function within the Basic Courts (Department for Serious Crimes and Department for Juveniles). As far as the Court of Appeals is concerned, there is only one in Kosovo, in Pristina, but a department in Mitrovica has recently started to function, more precisely, the Court of Appeals in Priština-Mitrovica Department, the establishment of this department greatly affects the efficiency of procedures. The Court of Appeals could not achieve that, respecting the principles of efficiency of the procedure, it acts quickly in all cases on appeals against verdicts of the Basic Courts, although even with this novelty we cannot praise of extremely fast decision-making of the Court of Appeals, but opening a department in Mitrovica is certainly a positive move. The Basic Court in Priština stands out with one special feature in comparison to other courts, namely the three departments that function within that court - the Administrative (Administrative Court), the Economic (Commercial Court) and the Special Department, which recently took over the jurisdiction to act in cases for the most serious crimes according to the indictments of the Special Prosecutor's Office.
Currently, there is a significance need for "division" of the Administrative Court (more precisely the administrative department of the Basic Court in Priština), the need to establish at least one or two more departments of this court in Kosovo because it is almost impossible for one Administrative Court (even in a small country is Kosovo) resolves all administrative disputes. I learned from experience that it takes at least a couple of years to resolve an administrative dispute in Kosovo. The ideal solution might be for this Administrative Department to establish two more territorially divided departments, which would thus relieve the work of the Administrative Court in Priština, so that one department resolved Administrative Disputes for the areas of the Basic Courts of Mitrovica and Pec and the other department for the areas of the Basic Courts of Uroševac and Prizren. Everything else would still be under the jurisdiction of the Administrative Court in Pristina.
Furthermore, what in my opinion imposes itself as a issue of legal practice in Kosovo is the existence and performance of the Kosovo Privatization Agency (PAK) and the Kosovo Agency for Comparison and Verification of Assets. Of course, these are the achievements of the UNMIK administration but from a legal point of view, these two agencies were given the opportunity to decide as if they were courts, not agencies, their decisions are final and definitive, cannot be challenged in regular proceedings, but only in front of Special Chambers of the Supreme Court of Kosovo (Special Chamber for PAK and Special Chamber for KAUVI). Anyone who has ever had the need to protect their rights in front of these agencies will know what I am talking about. These are decisions that are very often discriminatory, unprofessional and often characterized as a political nature, rather than legal.
One of the burning issues of legal practice in Kosovo is the issue of harmonization of translations of laws and decisions in Kosovo with regard to Serbian and Albanian versions.
According to the Article 5 Constitution of Kosovo guarantees equality of language usage, as well as the Law on the Use of Languages but the question is whether this equality is just a "letter on paper" or is it really applied? If we look at the Civil Procedure Law or the Law on Property and Other Ownership Rights, we will have a clear insight into the fact that even after almost a decade since these laws came into force, the texts of laws in Serbian language have not been properly translated and as such create space for interpretation and unequal application of the same article. When we talk about that, I must mention that this is not a mistranslated gender, number or minor technical errors but a mistranslation of entire sentences, articles and thus legal institutes, so then the question necessarily arises when two parties with "opposite" text of the same law attend the court which (or who’s) version will the court apply as valid?
Predrag Miljković
Lawyer
Predrag Miljković has been practicing law and providing free legal aid since April 2019, after passing the Bar Exam, he started his own law practice and founded Law Office “Miljkovic” in North Mitrovica.
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