Chapter 5. Case Study of Kosovo
5.2 Mechanisms of Fighting Corruption in Kosovo
國
立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
done by the Kosovo Government is the KJC appointment of its members: previously KJC had thirteen members, where nine were appointed by the assembly, and now since March 2016, the changes go in line with the recommendation of Venice Commission where only two members of KJC are appointed by the Kosovo Assembly, whereas the other seven are appointed directly by the judiciary (Transparency International 2016, 15)
Based on the survey conducted by Southeast European Leadership for Development and Integrity (SELDI 2016), in terms of pressure and involvement of corruption show that 27 % of respondents from Kosovo have been asked to give bribe (money, favor, gift) whereas 22 % have given bribe. Ranking Kosovo the fourth in Western Balkans. In terms of acceptability, where corruption is considered as an acceptable behavior, Kosovo ranks second in the region with 48% of respondents accepting forms of corrupt behavior. The same study further
examined the environment of corruption by estimating the perception of respondents on survey in terms of corruptness of public institution, which entailed the question “According to you, what is the degree of corruption proliferation in the following institution?”, the scale set 1 to 5, with one being high degree of proliferation, and 1 no proliferation at all. The results showed that Government is the highest corrupted institution with score of 3.01, followed by Parliament 2.68 and Courts 2.64. Police stands relatively low with 2.25 score, whereas EULEX has a score of 2.44. Furthermore, the study shows that 66% of respondents believe that most or all political parties and coalition leaders are involved in corruption, whereas 64% believe that ministers are also involved.
When responded in South-Eastern Europe were asked the question: “According to you, to what extent is corruption spread in the following countries?”. On a scale 1-5, Kosovo scored highest among its neighbors (3.4), whereas Croatia was perceived with lowest score of 1.8 (SELDI 2016, 21). Corruption related cases number is relatively low in Kosovo,
Transparency International report that the conviction fell by almost 50% between 2009 and 2012 where the transition of institution from international to community and national authorities gradually took place (Transparency International 2016, 17).
5.2 Mechanisms of Fighting Corruption in Kosovo
Kosovo Anti-Corruption Agency (KACA): formed in 2006, it is an independent institution which serves in verification and reporting of declared assets by high public officials and for
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
conflict of interests . The agency faces harsh criticism from state institutions and opposition parties. The agency is known to have limited capacity and strength to efficiently verify the declared assets, often giving unsatisfactory results in fight against corruption. Transparency International describes the KACA as the main anti-corruption body in Kosovo, with its functions including policy coordination, prevention and education, but with no political finance oversight and prosecution role. Whereas in term of investigation the agency’s function is considered as partial (Transparency International 2016, 13).
The Specialist Prosecutor's Office (SPO): established in 2008, under the law for Special Prosecution of Republic of Kosovo (Law no. 03/L-052). The law derived from Ahtisaari’s package with the intent of offering Kosovo necessary institutions for ‘supervised
independence’. The SPO is administrated by two authorities: The Ministry of Justice and EULEX, which is led by a prosecutor from EULEX. The law of SPO is adopted under the UN administration during in 2007, with the intent to fulfill the needs of Kosovo to fight organized crime, money laundering, terrorism, economic crimes and war crimes. Since the role of UNMIK faded with the declaration of independence in 2008, the UN’s intent on establishing of SPO was to ensure transfer the cases selected during UNMIK administration to the newly formed mission EULEX. Results regarding the fight against corruption are unsatisfactory, in 2012, only 26 of the cases of corruption were punished.
Special Anti-Corruption Task Force (2010): The task force was established in February 2010 (40), and operates under the SPO. Its main goal is to fight corruption against high-profile cases. On the verdict of formation of the task force, it is stated that EULEX requires SPO to form special anti-corruption department comprising international and local prosecutors, persons with knowledge on tax, and 30 officials of police selected by Kosovo government.
The verdict further guarantees the protection of prosecutors and their families, however in practice this has not been applied extensively. The credibility of this task forced was challenged and weakened when the head of the task force Nazmi Mustafa was arrested by EULEX in April 2012, he was accused of requesting bribe from individuals under
investigation by SPO in exchange of letting them free. He was found guilty together with three others for corruption and other similar charges.
In 2010, the National Coordinator for fighting against Corruption from the Office of State Prosecution was selected among prosecutors in order to coordinate the actual fight against
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
corruption. In 2012 the selected coordinator was confirmed after consistent requests that came by EU as a pre-condition for Visa Liberalization Criteria set by the union.
Kosovo and the European Union Rule of Law Mission in Kosovo (EULEX) (2008-2021):
EULEX was launched in 2008 and is the largest civilian mission that operates under
Common Security Defense Policy of the EU. The mandate of the mission was extended until 14 June 2021 with a decision from the Council of Europe and works within the framework of UN Security Council Resolution 1244. EULEX was deployed by Common Security and Defense Policy of EU. The main role of EULEX is to assist Kosovo in terms of rule of law, and its intent relies on establishing EULEX was to address main issues concerning Kosovo’s government and to support EU’s enlargement strategy (Capussela 2015, 101; Kuris 2019, 8).
The institution aims to transform the juridical system for it to become more independent, multi-ethnic, accountable, free from political interference and sustainable. The task that the mission employs are to monitor, mentor and advices Kosovo’s authorities. The scope of mission on criminal matters relies on ensuring proper investigation and prosecution on war crimes, terrorism, organized crime, corruption, financial crimes, inter-ethnic crimes and other serious crimes. Furthermore, the scope goes beyond that, including support of the judiciary and police, customs management, border security, and specialized function related to forensics and witness protection (Capussela 2015, 107-8; Kuris 2019, 9). EULEX is
considered as the most expensive mission established by EU, and serves as a case to show the capacity of EU to strengthen rule of law and fight against corruption and organized crime (Kuris 2019, 8).
Previous literature suggests that EULEX was deployed based on arrangements under which Kosovo became independent, also in hand with observations of Kosovo’s weak rule of law.
Kosovo’s judiciary system lacked independence, capacity and accountability and it often involved corruption and political interference. The first challenge of EULEX was its
deployment since EU did not recognize Kosovo as an independent state. The deployment of EULEX required agreement between EU and UN Secretariat, meanwhile USA assisted EU and Russia supported Serbia to pressure UN to comply with its Security Council resolution 1244. After officially taking effect on December 9, 2008, EULEX took over the competences of UNMIK (Capussela 2015, 44). However, EULEX faces constant criticism in failure to fight corruption in high profile cases. The inability of EULEX for meeting the expectations of Kosovo’s society has to do with several factors. One of the reasons is the intentional
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
balancing of the mission to avoid fighting corruption in high levels in order to ensure political stability in Kosovo. Possible investigations from EUELEX and the accusations against the central government could lead to institutional instability, something that would not be convenient for EU, since stable government is necessary for the dialogue between Kosovo and Serbia. The dialogue process is of high importance for EU to ensure stability in the region.
Kosovo Police: is considered relatively independent and trusted compared to its Western Balkan countries neighbors. This has been achieved through a quite transparent and objective selection and nomination process. Moreover, Kosovo also has an inspectorate to supervise police activities in order to ensure rules and practices. The transparency and relatively strong institutional independence of Kosovo Police has made this institution as the most trusted law enforcement in the country (Transparency International 2016, 16). Kosovo Police is
supported by EULEX for crowd and riot control.
A study from Kosovo Democratic Institution (KDI) identified some positive anti-corruption measures in Kosovo, KDI states that Kosovo has strengthen its legislative and institutional framework against corruption. The reformed Criminal Code and Criminal Procedure Code that came into force in 2013, defined corruption as a criminal act that is performed through abuse of power, conflict of interest, fraud in administration, receiving and giving bribes and influence in trade. Moreover, the new Criminal Code foresaw fines and imprisonment up to three years for those public officials who fail to disclose property, income, financial
obligations and other material benefits (Sutaj and Canhasi 2015, 53).
In 2004 Anti-Corruption strategy was adopted in Kosovo, and it was followed by an Action Plan in 2005. The strategy included measures of anti-corruption legislation, development of the judicial system and law enforcement, public administration reform, media, civil society and public participation, education and capacity building. The strategy of 2004 further resulted in adoption of Anti-Corruption Law by the Assembly of Kosovo in 2005. The law foresaw measures against corruption in fields of nepotism, conflict of interest, standards of accepting bribes and gifts by public officials etc. (Bokshi et al. 2011, 56). Later on, Kosovo Assembly adopted anti-corruption strategy and action plan that would cover a period from 2009 to 2011. The 2009-2011 Strategy was focused on strengthening institutional capacities and monitoring previously adopted legislation (KACA 2010). Anti-Corruption Strategy and
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
Action Plan (2009-2011) included objectives and priorities would address low level of trust in political, judiciary and public administration. The strategy also included preventive
policies and mechanisms to remove persuasion. Moreover, the strengthening of EULEX, civil society and cooperation with international community was also mentioned in the strategy (SELDI 2016, 24).
The latest Anti-Corruption Strategy and Action Plan (2013-2017) was adopted by Kosovo Assembly in February 2013. The strategy was harshly criticized by civil society organization and opposition parties (SELDI 2016, 30). The strategy had difficulties to be adopted in the Parliament, since it faced a strong disapproval by all MPs, but since the parliamentary procedures do not allow changes in strategy by the Parliament, the document was further pushed to agenda by ruling coalition, who later managed to secure the votes to adopt the strategy and action plan (Sutaj and Canhasi 2015, 29).
NGOs considered the strategy as weak in content and claimed that the strategy rather
legitimize corruption then fights it (SELDI 2016, 23). The civil society claimed that they had not been consulted for drafting the strategy, despite the large amount of recommendations from international community to include the civil society in the process of the new strategy.
Objectives of the strategy were formulated to reflect specific needs of the current corruption situation in Kosovo, the objectives included Prevention categories such as Prevention, Law Enforcement, Prosecution, Inter-institutional Cooperation and Raising Awareness (SELDI 2016, 24). The main goals of the strategy included reduction of corruption in progressive and sustainable way, building public trust in the government, zero-tolerance to corruption,
implementing international standards in fight against corruption in order to improve the rule of law and its effectiveness. Moreover, the strategy foresaw the change of culture in terms of fighting corruption and to ensure result-oriented approach (SELDI 2016, 24).
In November 2013, Action Plan to increase the Efficiency of the Prosecutorial System in Fighting Corruption was adopted by the Kosovo Prosecutorial Council. The objectives of this Action Plan are to strengthen inter-institutional cooperation in fighting organized crime and corruption. However, adding plans and to already existing strategies and plans faces
shortcomings since the results of those strategies and action plans are rarely measured and statistics on fighting corruption on Kosovo do not exist. National Coordinator for Fighting Economic Crime reported that comprehensive statistics are missing and should be included to
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
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.