EU's Borrell against Thaci’s Request on War Crimes Court

EU High Representative for Foreign Affairs and Security Policy, Josep Borrell, has submitted his response related to the mandate of the Kosovo Specialist Chambers based in The Hague. According to the written referral, Borrell said that Kosovo president Hashim Thaci has not consulted Head of EULEX when asked the Constitutional amendments related to Court’s mandate. Subsequently Borrell, said that this request is inadmissible, said Gazeta Express on Monday.
In August 2020 Kosovo President Hashim Thaci sent a letter to the Parliament of Kosovo asking it to amend of the Law on Kosovo Specialist Chambers (KSC) and Specialist Prosecutor’s Office (SPO), namely the article on the mandate of this court established to prosecute and try alleged crimes of the Kosovo Liberation Army (KLA).
The Law on Specialist Chambers and Specialist Prosecutor’s Office, otherwise known as the KSC Statute, was adopted by the Parliament of the Republic of Kosovo on 3 August 2015. In his request to the Parliament, Thaci called on MPs to extend the mandate of this Court beyond an initial five years mandate. According to Thaci’s proposal the mandate of the KSC and SPO shall continue until notification of completion of mandate is made by the Council of the European Union, in consultation with the Government of the Republic of Kosovo.
Following President’s proposal, Speaker of Parliament Vjosa Osmani addressed a letter to the President of the KSC, Ekaterina Trendafilova, asking whether the proposed amendments diminish the human rights guaranteed by the Constitution of Kosovo. The constitutional amendments are possible only with two third of votes of Kosovo MPs. The voting can take place only after the Speaker addresses the Constitutional Court to assess whether the proposed amendments are in line with the Constitution.
The Specialist Chambers of the Constitutional Court asked comments from the EU foreign policy chief, Josep Borrell. In his referral, dated 30 October 2020, Borrell thanks acting Head of Court Management Unit of the KSC, Syed Riaz Haider, for having accepted the EU’s request for an extension of the time limit for filing written submissions and filed his written submission.
In Borrell’s letter it is mentioned 14 April 2014 when the President of Kosovo and the High Representative of the Union for Foreign Affairs and Security Policy exchanged letters with regard to the mandate of EULEX, and the establishment and operation of a “specialist court” and a “specialist prosecutor’s office.” On 23 April 2014, the Assembly of Kosovo, ratified the Exchange of Letters as an international agreement between Kosovo and the European Union.
In his referral Borrell says that the proposed amendment by Thaci foresees the deletion of current paragraphs 13 and 14 of Article 162 of the Constitution. It foresees the following new paragraph 13 to replace those provisions: ‘[t]he mandate of the Specialist Chamber and the Specialist Prosecutor’s Office shall continue until notification of completion is made by the Council of the European Union, in consultation with the Government of Kosovo.’
Borrel says that since the Proposed Amendment by Thaci aims at amending a constitutional provision, it falls under the corresponding category of amendments referred to in the Exchange of Letters. But according to Borrell, no consultations with the Head of Mission EULEX Kosovo took place before the President of Kosovo sent the Proposed Amendment to the Chairperson of the Assembly on 24 August 2020, “contrary to the abovementioned legal obligation which should have been complied with, in accordance with Article 19(2) of the Constitution, which provides that “[r]atified international agreements and legally binding norms of international law have superiority over the laws of the Republic of Kosovo.”
“It is therefore submitted that, without entering into other considerations on admissibility, the Referral is in particular inadmissible for the reason that the consultations referred to in paragraphs 13 and 15 did not take place,” Borrell said in his referral.
“In that respect, the Referral would allow the Constitutional Court Panel to review the constitutionality of the procedure followed in the process of issuing the Proposed Amendment, bearing in mind the importance of preserving the Specialist Chambers and the Specialist Prosecutor’s Office as ‘an independent and impartial tribunal established by law’, as referred to in Chapter II, Article 31(2) of the Constitution, and the international obligations of Kosovo under the Exchange of Letters,” Borrell concluded in his referral sent to the Kosovo Specialist Chambers of the Constitutional Court.