International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2015 Issue
 

SPECIAL REPORT – Special to the International Judicial Monitor

 

Justice the Kosovo Way: An American Judge’s Very Brief Retrospective on Serving as a Judge in the Kosovo Trial Courts

Senior Judge James Hargreaves
By: Senior Judge James Hargreaves

In the fall of 2013 I was selected by the US Department of State and the European Union Rule of Law Mission in Kosovo (EULEX) to serve as a trial judge in the Major Crimes Department of the Basic Court (trial court) of Kosovo, in the city of Mitrovica in the north of the country. To become a member of the judiciary of another country and try cases in a completely different legal system was an opportunity that I simply could not resist. While my year on the bench in Kosovo was an amazing experience, it was not exactly the experience I was expecting.

The overarching goal of the EULEX mission was supposed to be to strengthen the rule of law in Kosovo by strengthening mainly its courts, prosecution and police functions. The focus was to be on mentoring, monitoring and modeling activities to assist in the modernization and professionalization of these arms of the criminal justice system. As I found out after arriving in Kosovo, things just had not worked out that way on the ground.

The role of EULEX when it came to courts and prosecution had evolved into, in essence, operating a separate and autonomous court system in Kosovo focused almost exclusively on the investigation, prosecution and trial of major criminal cases, mostly involving organized crime, government corruption, war crimes, human trafficking and major violent felonies.

While the criminal cases pursued by EULEX were prosecuted using the provisions of the Kosovo criminal and criminal procedure codes, and EULEX used the local courts for case filing and administrative purposes, all other aspects of the adjudication of these cases was under the complete control of EULEX judges, prosecutors and police investigators, even at the appellate court level. About the only concession to integration into the Kosovo judicial system was to provide that, in most instances, one local judge would be included with two EULEX judges on the three-judge trial and appellate panels. However, since the local judge was never allowed to be the president of the panel, he or she would never be in charge of managing the case. In Mitrovica, the city where I was assigned, the situation was even more detached from the local courts.

When I arrived at the EULEX base in Mitrovica I found that I was the 10th international judge on the team. This number grew to 14 judges during the year I was there. Besides one other American judge, there were judges from Norway, Croatia, Germany, Portugal, Romania and Bulgaria. The good news is that to work for EULEX it was required that everyone be reasonably proficient in the English language so at least we could all communicate tolerably well.

The most important thing I quickly learned was the extent to which international politics affected the work of the EULEX judges in Mitrovica. A little history is necessary to understand this.

As the war in the Balkans was coming to an end in 1999 most of the ethnic Serbians in Kosovo, who comprised the ruling elite, fled to Serbia to escape what was expected to be harsh retribution from the ethnic Albanians who made up about 85% of the population in Kosovo. However, some 70,000 or so Serbians stopped short of the boarder and established an enclave in the northern part of Kosovo where the Ibar River flowed south out of Serbia, through the middle of the city of Mitrovica and then turned north again and flowed back into Serbia. This approximately 22 square mile area essentially became an extension of Serbia with its own police, schools and various other governmental agencies, all financed by the Serbian government.

The problem for the courts in Mitrovica, and thus for EULEX, was that the courthouse for the Mitrovica region of Kosovo was on the north side of the Ibar River in the part of the city of Mitrovica that was completely controlled by the Serbians. The Serbians flatly refused to allow any of the judges or staff of the local Basic Court, who were all Albanians, to come to, let alone use the courthouse. In response, the Basic Court was forced to move its operations to Vushtrri, a town a bit south of Mitrovica, leaving the Mitrovica courthouse vacant.

By the time I arrive in late 2013 a deal had been struck by the Kosovo government, EULEX and Serbia that EULEX would be allowed to use the vacant courthouse for its trials. Thus, the situation I walked into was that all of the EULEX judges had their main working offices in a cobbled-together bunch of essentially metal shipping containers on the EULEX base south of the Ibar and traveled to the courthouse north of the Ibar for trials and hearings.

Aside from the logistical headaches of having to pack up case files and court staff and drive (in armored SUVs) to

 

the courthouse as necessary, there was a more significant impact in regard to the ability of EULEX to even  vaguely carry out its stated mission of mentoring, monitoring and modeling with the locals. Since the Serbians would not allow any of the local judges to go to the courthouse, in Mitrovica all of the three-judge trial panels were made up entirely of EULEX judges. There was not even the token one local judge on the panel as there normally would have been in the rest of Kosovo. Thus, in Mitrovica, three foreign judges—having no contact with or input from local judges—were left to read, interpret and apply the Kosovo criminal  and criminal procedure codes the best they could while managing cases and trying Kosovo citizens for very serious criminal offences. While most of the EULEX judges were very conscientious in attempting to discern and follow the Kosovo law, there were frequent disagreements among the EULEX judges about what the law was and how to follow it.  It was truly a case of the blind leading the blind.

A second issue that arose for me as an American judge revolved around the handling of evidence and the role of the judge in criminal prosecutions. While in the United States judges are fairly isolated from the evidence that is collected to be used by both sides in criminal cases, I quickly learned that this was not the case under the Kosovo criminal code. In Kosovo, when the prosecutor files and indictment with the court, the prosecutor simultaneously provides to the judge who is the president of the assigned trial panel numerous big, three-ring binders containing all of the witness statements, investigative reports and any other materials, such as bank records, video recordings, transcripts of intercepted telephone calls etc. upon which the prosecution is intending to rely at trial. The court gets the whole prosecution case, as do the defense attorneys.

Not only does the president judge get all of this evidence, he or she is expected to read and understand it all in preparation for trial. That is because, while trials are mostly adversarial proceedings, ultimately the judge in charge is required under the law to see to it that justice is done. This means that as the case progresses to trial, and at trial, it is the responsibility of the judges to see that all witnesses and all relevant evidence, on both sides of the case, are discovered and introduced at trial. It is not unusual for the Court of Appeals in Kosovo to send cases back for retrial with an admonition to the judges that they should have required that certain other witnesses or evidence be introduced at trial and taken into account by the trial panel in reaching its decision. For a judge who had spent his career trying to keep himself willfully ignorant of anything prior to it being admitted into evidence this new role was quite a stretch.

Another aspect regarding evidence also took some getting used to. While I was used to carefully testing all evidence for relevancy, competency, hearsay etc. before it was admitted, the rule was very different under the Kosovo code. The general rule was that unless something was just so inherently unreliable on its face that no conceivable value could be seen in it, the “evidence” was admissible. It was then up to the trial panel to sort out what, if any, weight to give it in arriving at a verdict. Another big stretch for me.

I think the final big difference to which I had to adapt was related to the verdicts in cases. In Kosovo the whole legal and factual basis for any verdict had to be contained in an excruciatingly detailed written opinion. Not only was it necessary to explain what evidence was relied upon in reaching the verdict but also why it was relied on, what weight that evidence had in reaching the verdict and why other evidence was not relied on. Of course all of this also had to be tied to the elements of the crime charged. And, if there were multiple defendants—which there most always was—this process had to be explained as to each of them individually. In some additional work I did sitting on the Kosovo Court of Appeals, I found it not unusual to see opinions that ran well past 50 pages.

While my stories from serving as a EULEX judge in Kosovo would undoubtedly fill as many pages as some of the opinions I both wrote and read, this has only been intended to highlight some of the biggest challenges I faced working in a completely foreign legal system. As I said in the beginning, even though this did not turn out to be the mentoring, monitoring and modeling experience I had expected, it was a career experience that simply will never be exceeded. This was an once-in-a-lifetime experience that very few get to have. I feel extremely fortunate to have been afforded the opportunity.

Senior Judge Hargreaves served as both a trial court and appellate court judge in Kosovo from November 2013 to October 2014. He previously served for 20 years as a trial judge in the State of Oregon before leaving the bench in 1995 to pursue a career as a consultant in case and court management both in the United States and in numerous developing countries around the world. He is the principal of Amicus Curiae Consulting. He can be contacted at jrhdks@gmail.com.

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with assistance from the American Society of International Law.

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