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