by Mariya C. Nikolova
A version with footnotes and references is available here.
It has been commonly noted that the United Nations and European Union mandated missions in Kosovo lack proper accountability mechanisms for human rights violations committed in the course of their mandate. One of the main criticisms has been that victims of such violations are effectively deprived of a forum before which they can bring their claims, which in itself undermines the goals and aspirations of the organizations and violates their right to have access to justice.
Based on extensive consultations, and taking into account the need for providing redress for possible violations, the European Union established the Human Rights Review Panel (HRRP) in 2009. The HRRP is a non-judicial accountability mechanism endowed with the power to review alleged human rights violations by European Union Rule of Law Mission in Kosovo (EULEX) in the conduct of its executive mandate. The HRRP can make non-binding recommendations on the basis of its findings, and follow up on the implementation of its recommendations with the Head of EULEX.
As such, the HRRP complements other already existing accountability mechanisms in EULEX and is inspired by other recently established accountability bodies – the Human Rights Advisory Panel of the United Nations Mission in Kosovo (UNMIK) and the Ombudsperson Institution in Kosovo.
Though having remained somewhat unnoticed, the HRRP promises to serve as an important pilot project for human rights accountability for future EU missions. As noted in its own Annual Report, the HRRP is currently “the only mechanism of its kind that deals with alleged human rights violations by a European Union Common Security and Defense Policy (CSDP) mission”.
While unable to award reparations, this mechanism represents a much needed forum to provide redress for violations which would otherwise remain unaddressed. It also represents a concrete reaffirmation of the premise that international organizations too have human rights responsibilities, and that victims have a right to access to justice for violations attributable to such organizations. In that regard, it is notable that the Commissioner for Human Rights of the Council of Europe proclaimed already in 2009 that:
“No one, especially an international organization, is above the law […] when international organizations exercise executive and legislative control as a surrogate state they must be bound by the same checks and balances as we require from a democratic government.”
Finally, the idea behind the HRRP is not only to reaffirm EULEX’s own commitment to respect for human rights in Kosovo, but also to promote a culture of accountability among the Kosovo authorities. Whether or not it will be able to do so effectively will depend on the level of real independence it manages to achieve from the EULEX budget, the way in which it defines the scope of its mandate powers, and the extent to which EULEX follows up on its recommendations.
The next sections explore some of the unique features of the HRRP and provide some reflections on its nascent jurisprudence and the challenges ahead in the discharge of its mandate.
Mandate and rationale
The HRRP was born out of recognition that there was a lacuna in addressing human rights violations attributable to EULEX in the exercise of its mandate in Kosovo. It is therefore above all an accountability mechanism. However, it does not have the authority to issue binding decisions and does not award any compensation for damages.
The idea of having a mechanism in place with binding powers, or even extending the jurisdictional reach of the European Court of Human Rights to acts of the international administration in Kosovo was discussed, and set aside at the time, due to the legal complexities involved. The HRRP represented a short-term measure taken to improve the accountability of EULEX. It is therefore not unimaginable that further legal development can lead to a more constraining sort of accountability in the future.
Composition, Staff and Funding
The HRRP is composed of three international judges, one of whom is a EULEX judge. They are all appointed for a period of one year by the Head of Mission of EULEX, based on a competitive selection process and they are in no way subordinate to him. The judges are assisted by two legal officers and the staff of the EULEX Secretariat. The panel generally sits in Pristina and holds an average of six sessions per year. The deliberations are held in closed sessions and decisions are adopted by a majority. The official languages include Albanian, Serbian and English. Although the HRRP is entirely financed by EULEX, it is not a EULEX body and it sits in a separate building from the EULEX headquarters in Pristina. It is unclear from the Rules of Procedure whether the HRRP judges benefit from immunities similar to EULEX officials, and whether their premises and documents are inviolable.
Scope of mandate
The HRRP is able to review complaints by any person who claims to be the victim of a human rights violation by EULEX Kosovo (by virtue of an act or an omission) in the conduct of its executive mandate. Importantly, the HRRP does not serve as a reviewing instance (or appellate body) of any of the Kosovo courts.
Substantively, the HRRP can consider violations under the following major international human rights instruments: The Universal Declaration of Human Rights (UDHR, 1948), The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR,1950), The Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965), The International Covenant on Civil and Political Rights (CCPR, 1966), The International Covenant on Economic Social and Cultural Rights (CESCR,1966), The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979), The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT, 1984), The Convention on the Rights of the Child (CRC, 1989). The only two major international instruments that the HRRP is currently not mandated to consider are The Convention on the Rights of Persons with Disabilities (CRPD, 2006) and its Optional Protocol (2006).
Interestingly, the above list of instruments is not found in the Rules of Procedure of the HRRP, but rather simply on its Webpage. By way of contrast, the Human Rights Advisory Panel of UNMIK lists the conventions it can consider in Article 1.2 of its Rules of Procedure. The broad jurisdictional mandate, reaching over both UN treaties and a regional convention, will require a wide scope of expertise from the sitting judges. The HRRP will be able to consider not only civil and political rights, but also social, economic and cultural rights. The HRRP can even directly apply the UDHR. In that aspect, it is only the second body of such nature that can do so, the first one being the UNMIK Human Rights Advisory Panel. The wide scope of international instruments to which the HRRP can make reference is truly exceptional for an accountability mechanism of this type and betrays an ambitious agenda.
A complaint before the HRRP can be brought by the victim personally, or by a representative empowered to represent the victim. It has to be submitted in written form, and the alleged violations have to have occurred in Kosovo after 9 December 2008.
Once a complaint is deemed admissible, the Panel invites submissions from the Head of Mission of EULEX. It thereafter formulates its findings on the alleged human rights violation and publishes them in a reasoned decision, which includes non-binding recommendations to the EULEX Head of Mission. It is up to the Head of Mission to ultimately decide what remedial measures to take, and there is an expectation that he will reason his decision in so doing. The HRRP is additionally mandated to do follow-up findings on the implementation of its recommendations by the Head of Mission. It publishes promptly all of its decisions, including any follow-up decisions.
The Panel has thus far considered 46 cases, out of which it has found 14 admissible. In two situations, the HRRP has found that EULEX has violated certain provisions of the European Convention on Human Rights. In one of those two cases, the HRRP has already published its follow-up findings. The findings in the most recent cases concern the right to a fair trial, the right to an effective remedy, the right to life and the right not to be subjected to torture.
As a general trend, the HRRP has thus far received complaints mostly about alleged violations under the ECHR (rather than any of the other available human rights instruments). One probable explanation is the better familiarity of the complainants with the ECHR provisions. It remains an open question whether the HRRP can consider proprio motu parallel violations under other relevant human rights instruments when they concern specifically protected rights or persons (e.g. the CRC or CERD). Among the violations most commonly alleged so far are: the violation of the right to life, the prohibition of torture, the right to liberty and security, the right to a fair trial, the right to respect for private and family life, the freedom of expression and the right to an effective remedy.
In its findings, the HRRP has extensively quoted ECHR jurisprudence and has attempted to interpret its mandate in light of the overall purposes of EULEX as set out in the European Council Joint Action 2008/124/CFSP of 4 February 2008 establishing EULEX.
Several important findings stand out in the nascent jurisprudence of the HRRP. First, with respect to the right to a fair trial, the HRRP has found that one of the important elements of the right of access to a tribunal guaranteed under Article 6 (1) of the ECHR is the actual execution of final, binding judicial decisions. Without proper execution of such decisions, the HRRP has held that the right to a fair trial remains illusory and inoperative. The HRRP’s reasoning was based on the assertion that, as per ECHR’s own jurisprudence, the execution of a judgment given by any court must be seen as an integral part of the “trial” for the purposes of Article 6 of the ECHR.
Secondly, the HRRP has provided important reflections on the exact scope of its mandate and powers. It has established, for instance, that while it can review the actions of EULEX or police while examining a case as they fall within the “executive mandate” of EULEX, it cannot review the administrative or judicial work of the Kosovo courts, even if there is a EULEX component in them (by virtue of a participating judge, for instance). The HRRP also considers that the EULEX’s “executive mandate” does not cover questions of administrative character with respect to housing, the provision of healthcare, pollution or matters of social policy. One could wonder what social economic and cultural rights violations the Panel would consider itself competent to look into in the future under such a narrow interpretation of EULEX’s executive mandate. On the other hand, the HRRP has recognized that the alleged inability of the complainants to find a proper judicial remedy for such violations raises serious questions “of law and fact” as to the right to access to justice. The Panel has therefore accepted that it is competent to review the complaint in that regard.
Thirdly, the HRRP has shown that it is ready to step in and identify the rights that appear to be violated even if they are not explicitly mentioned by the applicant, where on the totality of the evidence, a clear indication of potential violations arises. This was recently done in the case W v. EULEX, where the Panel ruled that the applicants’ complaint essentially pertained to the right to life, the right not to be subjected to torture or other inhuman or degrading treatment or punishment, and the right to private and family life. Furthermore, in light of the important rights protected, the HRRP recommended in the same case that EULEX take certain interim measures pursuant to Rule 22 of the Rules of Procedure, in order to safeguard the complainants’ security while the Panel deliberates on the merits of the case.
The above overview of the case law demonstrates that the HRRP moves swiftly towards developing its own jurisprudence, basing itself largely on the object and purpose of EULEX’s mandate, while being cautious not to engage in too much judicial creativity.
Implementation of recommendations
The remedial measures that the HRRP has recommended so far are concrete and actionable. Among others, the HRRP has suggested that the Head of Mission act to speed up proceedings affecting the right of a complainant, so as not to cause further violation of the right to a fair hearing under Article 6(1) of the ECHR, and that the Head of Mission look into ways of ensuring effective execution of judicial decisions.
The measures that the Head of Mission has reported being taken in response to the HRRP recommendations have been equally concrete, albeit in some cases unsatisfactory. Thus, for instance the Head of Mission has held that “he understands and sympathizes with a complainant’s situation and that he is well aware of the large judicial backlog within the court system of Kosovo.” Regrettably, in this instance the Panel considered that this was a reasonable answer, and noted that the EULEX Head of Mission had exercised his functions properly. The HRRP based itself on the finding that he had “taken certain measures to address the complainant’s situation”. Whether such a low threshold of due diligence will continue to satisfy the judges in the future is open to interpretation, but it is also likely to raise questions as to the effectiveness of the mechanism to provide a remedy. The success of the HRRP as an advisory body will be measured not only by the soundness of its decisions, but also by the extent to which its recommendations are implemented and make a material difference in the applicants’ situation.
The HRRP has put up an ambitious outreach strategy in place since 2010. This includes meetings with civil society organisations, relevant public authorities, and members of the general public. For 2011, the focus of the outreach strategy has been on municipal administrations. The Panel has also had received visibility via TV/radio and other media outlets. Since 2011, the HRRP has extended its outreach into Serbia. This seems to be a promising step into what is predictably a very delicate public relations exercise in a tense multi-ethnic environment. It will be interesting to see whether the HRRP will exchange experience and lessons learned with the UNMIK Human Rights Advisory Panel or the Ombudsman Institution in the future, and whether it will interact with the UN treaty bodies which are specifically mandated to interpret the conventions mentioned in its mandate.
Possible advantages of the HRRP
As is well known, EULEX enjoys jurisdictional immunity against local legal and administrative process. Therefore, the decision to create the HRRP is an expression of the realization that EULEX cannot be seen to avoid accountability because of its immunity. In that sense, its creation was already a step towards asserting the human rights responsibilities of international organizations. Moreover, the mechanism, as currently operational, strives to strengthen the overall objectives of the EULEX mission to promote the rule of law. Several aspects in the current functioning of the HRRP are indeed quite promising in that regard.
Firstly, almost by virtue of its existence, the HRRP is bringing a degree of transparency into the work of EULEX, which is unprecedented for other EU or UN missions around the world. It therefore represents not only an important forum for redress of violations, but also a mechanism for self-regulation and improvement within the EU presence itself.
Secondly, the Panel has already delivered on its promise to provide concrete reasoned findings, and perform expeditiously and impartially. The HRRP issued its first decision in April 2010, and although the composition of its judges changed quite a bit between 2010 and 2012, it did not slow down in its considerations of complaints in 2011, even as they increased both in number and complexity.
Thirdly, through its outreach campaign, the HRRP is not simply providing information to civil society and public officials about its work and procedures. It also cultivates general awareness of fundamental human rights and mechanisms for redress, which serves the important educational objective of reaffirming the value of – and trust in – the rule of law. This can only further EULEX’s own primary objective in Kosovo.
Some upcoming challenges for the HRRP
At this early stage of the HRRP’s existence, it is perhaps premature to make any conclusions about the effectiveness of its work. As noted in the previous section, the HRRP has so far dealt with a handful of cases, demonstrating considerable impartiality and expediency. Nevertheless, there are several challenges lying ahead. The first one concerns funding, staffing, and resourcing. Currently, this mechanism derives its funding completely from the EULEX budget. Yet, both ECHR jurisprudence and practice show that real (and perceived) independence and impartiality can only come with an independently sourced budget. The question of whether EULEX will explore ways of achieving such independence remains an open one, but is just as important as the initiative to create such a mechanism in the first place.
Secondly, as the case law of the HRRP develops, there will arguably be more clarity as to the exact meaning and scope of the term “executive mandate” of EULEX, which is at the core of the HRRP admissibility provisions. The current record reveals a rather cautious approach, but it will be important for the HRRP not to be seen as a mechanism that simply shields or absolves EULEX of responsibility using a formalistic interpretation of the term “executive mandate”.
Similarly, it remains to be seen how the HRRP will attempt to explain to victims that it has no powers to award financial compensations for damages suffered or binding decisions. It has done so very explicitly in its outreach campaign so far, but there will have to be a concerted effort on the part of the judges on the panel to demonstrate that the findings and recommendations they make serve just as an important reparative and remedial function as any material awards. One important feature of the HRRP which should not go unnoticed, for instance, is that there are no costs associated with filing a complaint before the HRRP, which is not the case with domestic judicial proceedings. Another possibility, in principle, remains the pursuit of compensation through the EULEX Third Party Liability Insurance Scheme for damages suffered, based on the findings of the HRRP.
In terms of the outreach strategy itself, the challenges ahead will continue to relate to informing the public authorities and civil society about the exact functions and powers of the panel and avoiding an upsurge of inadmissible complaints due to lack of awareness of its mandate.
Depending on any future decisions about HRRP’s staffing, resourcing and funding, as well as the degree to which EULEX is seen to ensure that decisions issued by the HRRP are implemented and effective remedial measures are put in place, the panel can turn into a unique mechanism that ensures better performance by EULEX and contributes to lessons learned for future EU missions.
Although impact is too early to measure, its indicators will include the expediency and transparency of the findings, the level of involvement of civil society, the cooperation with the EULEX Head of Mission, and the implementation of recommendations. But by showing that it is willing to expose itself to a degree of human rights accountability, EULEX is already making a step in the right direction.
Finally, it should not be forgotten that there are many other, parallel ways to achieve accountability. Notably, legal accountability ought to be primarily ensured by the judicial mechanisms of the participating EU states. Thus, although the HRRP will remain a unique forum for victims, it will not be the “magical wand” which will solve all the problems arising out of human rights violations associated with EULEX’s presence in Kosovo.
Mariya Nikolova holds an LLM in International Humanitarian Law from the ADH Geneva Academy of International Humanitarian Law and Human Rights Law. She was previously a Legal Trainee at the Special Tribunal for Lebanon and Editorial Assistant of the International Review of the Red Cross, ICRC.