Chapter 5. Case Study of Kosovo
5.3 Anti-Corruption Progress and the Prospects of Kosovo’s Accession to the EU
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report data on convictions and confiscation of assets (Sutaj and Canhasi 2015, 30). Despite making progress in fighting corruption in legislative terms, Kosovo lags in terms of political will to enforce implementation and effective institutional mechanism. Moreover, the
institutional overlapping without producing desired results, generating new institutions, action plans and strategies instead of empowering the existing ones only adds to the problem.
5.3 Anti-Corruption Progress and the Prospects of Kosovo’s Accession to the EU
Even though Kosovo has fulfilled all of the requirements set by European Union for visa liberalization. Strengthening the track record in fighting corruption and organized crime was criteria of high priority (European Commission 2018b, 1). Moreover, the so-called Progress report by EU, requires for a considerable number of judges and supporting staff in the department of v crimes to be transferred in all Kosovo, also EU requires Kosovo to form a registry for investigations. Moreover, the report requires that Central Coordinator for heavy organized crimes and corruption to be mandated and have necessary resources in order to lead teams with different disciplines of financial investigations and also to monitor the persecution of such cases (European Commission 2015). Just as in previous progress reports by EU, Kosovo still shows poor results in terms of fighting corruption, especially in cases related to high-profile corruption.
The progress report of 2015 noted that Kosovo is on the beginning phase of fighting
corruption and with overall limited progress. Strong political willingness is required in order for the state mechanisms to combat corruption in an efficient way. A fresh approach should be applied with inclusion of different actors as well as sophisticated strategies that would show concrete results in fight against corruption. Moreover, a successful approach is
demonstrated by a successful prosecution of cases. In order for the fight against corruption in Kosovo to be advanced the progress report suggests that the government of Kosovo should give priority and focus more on cases of high-profile corruption, more precisely on the public procurement and to finalize punishment and successful prosecutions. Moreover, Kosovo should strengthen its v between police and prosecution in order to facilitate efficient investigation for combating high-profile corruption in the country (European Commission 2015, 15).
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EU further has observed that there is a relation between political impact and limited capacities that stagnate the investigation of financial crimes. As result, the confiscation of certain assets and proper investigation of financial crimes remains limited. Furthermore, the report recommended financial investigation of both corruption and organized crime should be integrated. Furthermore, EU states that there is a number of bodies and institutions that are mandated to fight corruption, however, some of these institutions exceed their responsibilities and some have unclear division of responsibilities (European Commission 2015, 16). On a positive note, the progress report of 2015 issued by EU, states that the majority of high officials have declared their wealth and it’s a positive outcome, however, the Anti-Corruption Agency should further enhance the effectiveness for enabling the investigation on
unexplainable wealth. There is still lack of willingness by the prosecutors to prosecute cases of corruption. EU further suggested that there should be a close cooperation between the prosecutors and the Anti-Corruption Agency in order to prioritize high-profile cases of corruption. EU saw it as positive the application of Standard Operative Procedures (PSO) in 2014, which focuses on the particular prioritizing of cases.
EU conditions for Kosovo strongly emphasize the fight against corruption and are often repeated in all of progress reports issued by the union. Kosovo’s political elites have shown a moderate willingness to address these serious conditions set by EU, especially on lack of punishment for cases of high-profile corruption. The lack of political willingness has resulted in weak results by the rule of law institutions to fight corruption effectively and it is foreseen that these conditions are crucial for Kosovo to come close to future accession to the union.
EU has stated that in general the laws are in accordance with the EU’s acquis; however, some laws and the mechanisms of enforcing are often used as tactic by Kosovo’s government to minimize their executive importance. Often those laws lack inclusiveness and strategic approach. Since 2004, Kosovo has approved a considerable number of laws related to fight against corruption, such as ‘The Law against Corruption’. The Criminal Code of Kosovo was amendment in 2013, generating a specific article of criminal offenses related to corruption of officials and take official duties. The amendment of Criminal Code entails the conflict of interest and bribing of public officials in article 430, and the non-reporting or false reporting of assets, income, gifts and financial obligations as stated in article 437. Pressured by EU, Kosovo Government has pushed for adoption of specific laws such as : the law for declaring, origin and controlling assets and gifts received of high public officials, and also the law for
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confiscating assets and wealth created in illegal manner. New criminal code compared to the one during UNMIK in 2003, has foreseen more lenient punishment for abuse of power by decreasing punishment of jail from 8 (under UNMIK administration), to 5 years (KIPRED 2016, 5).
EU Progress Report in 2015, has observed that the Anti-Corruption Agency (KACA) has done limited progress concerning its performance in fighting corruption. In 2014 the agency processed 304 cases, 131 of which sent to the prosecution office or police for further
investigation. Moreover, 19 had to do with abuse of power and official positions which includes accepting bribes and misappropriation of the office. 101 of these cases had to do with falsely reporting assets (EULEX 2015, 24). EU report further restates the weakness of the agency, especially on investigation main corruption cases. Moreover, in 2014 the agency had the lowest number of core corruption cases forwarded to the prosecution since its creation in 2007.
This report published by the Anti-Corruption agency according to the EU progress report suggest that the agency has not produced effective measures with substantial outcomes regarding law enforcement. Furthermore, in 2014 KACA reported 5103 declaration of assets by high officials a compliance with rate of 98.21% in comparison of 5,196 cases expected.
The compliance rate of declaration of assets requested by KACA was 100% in total of 88 declarations. However, the EULEX report of 2015 suggested that there is no accepted verification process of declaration of assets and the data provided are often not accurate and legitimate. In the declaration of those public officials who declared assets for the first time, a considerable number of mistakes were found (EULEX 2015, 24). In terms of strategy, in November 2013, the Action Plan on Increasing Effectiveness of the Prosecutorial System in the Fight against Corruption was launched. However, in preliminary assessments 959 cases were registered, but only 401 or 41.81% of those cases were solved during the first year of the Action Plan. However, disciplinary investigations regarding the low rate of prosecutions have been conducted to investigate the negligence or failure by prosecutors in regarding Action Plan’s obligations (EULEX 2015, 25).
In the recent annual report published by KACA in March 2019, report for the year of 2018, the preliminary investigation has been conducted for 390 cases, 139 of those are carried from year 2017, and 251 new cases were received for 2018. 114 of these cases were forwarded to
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the Prosecution Office, Police and Tax Administration of Kosovo (KACA 2019, 7).
Regarding persons suspected for corruptive activities 114 cases were reported and forwarded to the relevant institutions for further proceedings, majority of those cases were forwarded to the Office of the Chief State Prosecutor. Some of these cases consist two or more offences.
KACA (2019) states that these offenses contain a range of violation of law, including “abuse of official position or authority, conflict of interest and non-reporting or falsely reporting property, gifts, income and other material benefits or financial obligations”. Persons reported to be involved in these cases include different levels such as: member of parliament, deputy minister, advisers to the ministers, ambassadors, mayors, high position members of public universities, judges, directors, etc. (KACA 2019, 10).
EULEX’s 2016 Progress Report considers that the system of declaration of assets should be revised in depth despite making progress through development of two crucial tools; TV infomercial which constantly remind senior public officials about the deadlines of declaration of assets, and also the notification letter drafted and sent to public official by OSCE and EULEX, and serves as a proof that they have been informed. The expectations for using these methods aim to help the system of declaration of assets which was implemented by the Anti-Corruption Agency (EULEX 2016, 29). The reports further notes that there was progress for the cooperation between the KACA and the civil society. An NGO analysis showed that KACA has been active in initiating investigation procedures for appoint of Boards of Directors in public enterprises by breaching the law on public enterprise. KACA addressed the issue to the prime minister and was backed by EU. In regards fighting conflict of interest is lagging, the Kosovo government withdrew the draft for the Law on Prevention of Conflict of Interest from the assembly. The report suggests that the law is weak and allows public officials to have more than two jobs at the same time, this phenomenon does not go in hand with EU good practices. Also, legislation regarding disciplinary system for judges and prosecutors does not meet international standards (EULEX 2016, 29-30).
The report issued in 2019 by European Commission on Kosovo states that the country is still at early stage of fighting corruption. Kosovo has made some progress through legislative reforms in the rule of law area and investigation and prosecuting of high level-cases of corruption. Moreover, progress is also noted in confiscation of assets in the preliminary phase, however it remains low on the final confiscations. The report notes that corruption still remains widespread and is an issue of concern for Kosovo (European Commission 2019, 4).
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Report of 2019 points out that political appointments such as ambassadors or ministers of the cabinet who have offences including corruption and abuses of office highly damage the image of commitment to fight corruption that Kosovo is pushing for (European Commission 2019). Adoption of several laws that are important for the judiciary system to fight corruption has been seen as significant step and are expected to be implemented. Now judges and
prosecutors are obliged by law to declare their assets and to report any conflict of interest to the KACA. In 2018 only one prosecutor failed to submit declaration of assets, whereas all others submitted their declarations on time (European Commission 2019, 16).
The 2016 European Commission report notes that Kosovo has taken measures to fight corruption and has done progress to set up a multi-disciplinary investigative team leaded by the Special Prosecution Office in order to track high-profile corruption cases. The legal framework of the country has been aligned with the EU acquis, legislators in Kosovo have amended the law on declaration of assets for senior public officials and the law on public procurement among other changes (Lilyanova 2017, 7). Recommendations for 2020 from the 2019 report suggest that Kosovo should increase the number of prosecutors in Special
Prosecution Office that investigate and prosecute high-level corruption cases, and should also provide trainings that would strengthen the capacity to conduct investigations, confiscate assets effectively and protect witnesses. Furthermore, Kosovo should ensure that finical reports and campaign disclosure reports from political parties should be published and audited consistently, and any violations of law in this regard should be punished (European Commission 2019, 19).
The track records on the report of 2019 show that 51 cases of level corruption and high-profile serious and organized crime. Among these, there have been 38 indictments and 27 of those are related to corruption whereas 11 are related to organized crime. In 9 cases there has been final ruling, 5 ended with partially guilty verdict, 9 individuals were convicted for corruption offences (conflict of interest, trading influence, abuse of official position). 13.2 million EURO worth of assets were frozen in these cases, but no assets were finally confiscated (European Commission 2019, 20).
Stabilization and Association Agreement (SAA) between EU and Kosovo entered in force in 1 April 2016. Strong democracy and rule of law, economic support, institutional, political and regional stability, enhancement of free trade, and support for transition into functioning
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market economy are among main goals of this agreement. Moreover, the agreement provides framework for the dialogue opens way for strengthening the political relation between EU and Kosovo.
EU is one of the largest contributors for Kosovo with approximately 650 million EUROS financial support related to the process of pre-accession and approximately 237 million EUROS assistance in the area of rule of law and other sectors in order to support Kosovo for its potential accession to the EU. Moreover, EU plays an important role in facilitating and mediating the dialogue between Serbia and Kosovo that aims to normalize relations between the two. In 2011 the talks were on technical level and later in 2012 they upgraded to political level with meetings of Serbian and Kosovar prime ministers (Russell 2019). Despite being halted and stagnating several times, the dialogue between Serbia and Kosovo is a consistent priority for EU to ensure stabilization in the region. EU expects Kosovo to continue the dialogue with Serbia to normalize the relations. Kosovo’s future EU accession largely depends on improving the rule of law and normalizing the relations with Serbia. The efforts to fight corruption in Kosovo are not satisfactory and as mentioned in several reports by EU, Kosovo needs to step up its fight against corruption. Moreover, the future of Kosovo’s accession is strongly related to the relations with Serbia, since it needs to solve its
independence recognition problem, considering that five members of EU do not recognize Kosovo as independent state yet.
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