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19.6.2015

OMBUDSPERSON’S SPEECH ON THE PLENARY SESSION OF THE ASSEMBLY OF REPUBLIC OF KOSOVO REGARDING 2014 OI ANNUAL REPORT

Dear Mr. Speaker of the Assembly, thank you for the given opportunity


Honorable Members of Parliament, Ladies and Gentlemen,


Honorable members of the Government,


Based on the Article 135, paragraph 1 of the Constitution of Republic of Kosovo and the Article 27 paragraph 1 and 2 of the Law on Ombudsperson, I am pleased to submit to you the fourteenth Annual Report of the Ombudsperson Institution of the Republic of Kosovo.


Ombudsperson’s Annual Report offers a good opportunity to all state institutions, to recall that "The Republic of Kosovo is a state of its citizens" and "exercises its authority based on the respect of rights and freedoms of its citizens and of all individuals within its borders "(Constitution, Article 1, paragraph 2). In other words, respecting of human rights is not just a goal, among others, that may be sacrificed or ignored facing common interests of daily politics. Respect for human rights and freedoms under the Constitution, constitutes the core - the foundation of our state.


This report offers an overview of the entire work of the Ombudsperson Institution (OI) during 2014 as well as reveals detailed proves of the human rights situation in the Republic of Kosovo during this year.


The following represents some statistics as per having a quantitative overview of the situation. 2224 complaints and requests to be instructed about the legal remedies have been submitted with the OI from more than 3000 complainants from 1st January till December 31st, and 141 different recommendations have been issued for different institutions of the Republic of Kosovo, increasing in this way for 10% the number of lodged complaints in 2013, during which 2047 cases have been handled and 127 recommendations have been addressed towards public authorities. A similar tendency of increasing number of complaints submitted with the OI continues within the first half of 2015.


Although about 75% cases or 1,637 complaints submitted to the institution are inadmissible, the Ombudsperson and his staff are aware that people requesting assistance in this institution, regardless admissibility or inadmissibility of their cases, mainly consider the Ombudsperson as the last chance in problem solving but also considers it as the last instance to expose their dissatisfaction with the failure of state institutions to act. Therefore, even in cases in which the institution lacks the power to act, particularly on such cases, the Ombudsperson is a careful listener to all those in need to be heard without any difference. Everyone is welcomed, carefully listened and assisted where possible, or advised where necessary. In this regard, the Ombudsperson Institution aims to be the most democratic institution of the Republic of Kosovo. Each citizen of the Republic of Kosovo is a priority for the Ombudsperson.


This Report is divided into four chapters. The first chapter presents an overview of the powers, responsibilities and mandate of the OI. Likewise, the First chapter reiterates a recommendation for amendment of the Constitution in order to include three international instruments within the list of international instruments directly applicable in the Republic of Kosovo: Convention on Economic, Social and Cultural Rights of the UN, the European Social Charter and the Convention on the Rights of Persons with Disabilities. Recommendation for the first two instruments, repeated for several consecutive years by the Ombudsperson, so far has been completely ignored by the competent authorities for amending the Constitution.


 


Chapter II provides a detailed overview of the Ombudsperson's work related to all fundamental rights and freedoms set forth in the Constitution. The chapter is divided into three parts. The first part focuses on fundamental rights and freedoms under Chapter two of the Constitution by line. The second part deals with the theme of discrimination as a specific form of violation of human rights and freedom, while the third part deals with judiciary.


Upon detailed reporting of all rights, the Third chapter of this Report provides some information regarding some activities undertaken from different departments of OI including its cooperation with local and international institutions.


The summary of the Report is embodied in the fourth chapter containing a statistical overview of the complaints lodged with the OI during 2014.


As obviously noticed in this Report, in narrative as well as statistical aspect, successive failures of state institutions of the Republic of Kosovo to accomplish their liabilities concerning human rights are as hundreds of small pieces which united form a mosaic of endless institutional neglect and irresponsibility. The main purpose of this Report is to bring to the public, without any reservation or artificial domestication, the serious situation of human rights in Kosovo. This condition which, although  cannot be detected by analyzing each failure isolated from others, becomes clear and undeniable only by looking all the failures together, and by noticing repetitive patterns of  various violations committed by a range of state institutions, regarding a wide range of human rights and freedoms.


In the legislative field, this Report provides examples of the failure of the Assembly of the Republic of Kosovo as per review of the Ombudsperson’s recommendations concerning new laws adoption, or alternation of current laws that affect human rights and freedoms.


This becomes even more stressful considering the fact that Ombudsperson’s Annual Report of the last year has not been discussed in the plenary session.


Another failure constitutes the delay of new Ombudsperson election as of June 2014. It is worth emphasizing here the commitment of the Parliamentary Committee for Human Rights in the last two years to cooperate with OI. Such initiative recently has been undertaken by Legislative Parliamentary Committee as well. 


It cannot be left unmentioned the fact that all these failures are closely connected with the political crises in the country after the June 2014 elections to constitute the new legislature of the Assembly. This report shows that the political stagnation of six months has not only been a ridiculous farce but was a severe knock for human rights as well, leaving unrevised a vast of proposed and recommended legislative reforms by Ombudsperson , in some cases repeated in years. After a failed legislative year, the Ombudsperson expects that the proposed reforms and recommendations, which are elaborated under the different themes in this Report, be considered and implemented without delay by the new Parliament legislature.


Even more serious in 2014 was the failure of the government, both at national and municipal level. The data in this Report show that, in 2014, as in previous years, complete refusal or failure to respond to Ombudsperson’s requirements and recommendations, continues to be prevalent chronic disease among the highest state authorities, including the President, former Prime Minister, the current Prime Minister, and various ministers of old and new government, including current Minister of Education as well as current Minister of Social Welfare. Opportunities have been given several times to both Ministers as well as PM Mustafa to respond on the Ombudsperson’s reports with recommendations. Until now both Ministers have completely ignored these reports with recommendations. Notwithstanding I believe that PM Mustafa and both Ministers Bajrami and Abrashi will benefit from this plenary session to provide response to the Reports with recommendations in front of you, publicly as well as to disclose their failure to cooperate with the Ombudsperson.


It should be stated that cooperation with the Ombudsperson is not an issue of the free will but legal liability. Failure or refusal to cooperate with the Ombudsperson constitutes direct violation of the Constitution of the Republic of Kosovo, which clearly stipulates that: "Every organ, institution or other authority exercising legitimate power in the Republic of Kosovo is obliged to ' respond to the demands of the Ombudsperson and submit him / her all the documents and information required in accordance with the law "(Article 132, item 3). Moreover, according to the Law on Ombudsperson, the failure or refusal to respond "is considered obstruction to its work". Under this standard, Ombudsperson’s hindrance to conduct investigation by the highest executive authority in the Republic of Kosovo is extremely upsetting and inexplicable for a democratic society.


Optimistic and lawful promise during inauguration speech of Mr. Mustafa, as nominee for Prime Minister's post, promised that "the government will put the human rights high on its political agenda" and "shall ensure that the Ombudsperson's recommendations are adequately addressed" remained to be seen how applicable they will be in practice. Experience of late months denotes how vain this cooperation was. In this direction, PM Mustafa and the Government of Republic of Kosovo are negatively evaluated- at least until now. The Ombudsperson, however, hopes for a fruitful cooperation in the future, be that by the President, and by the Prime Minister as well by the Government of the Republic of Kosovo, according to their constitutional and legal obligation.


Unfortunately, situation of judiciary as per human rights continues to be tremendously upsetting and scarcely to be improved in the nearly future. In the current situation, judiciary is being transformed from defender into offender of human rights and freedoms, resulting in the loss citizens’ confidence in justice for the rule of law.


Huge problems which have enfolded the judiciary of the Republic of Kosovo comprise  malfunctioning of the judicial power within the entire country; delays in solving of civil and criminal cases; increase number of pending cases from previous years; low rate of execution of court decisions; statute of limitation of court cases; decisions and court proceedings against judges for corruption; not application  in practice of the norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and by not interpreting the court decisions according to the decisions of the European Court of Human Rights (ECHR).


Regardless of these failures of the judiciary, proven in previous years as well, in 2014 we have seen a tremendous failure by the Constitutional Court of Kosovo (CCK). In specific cases, rulings of this Court, apart lacking minimal intellectual, legal and professional standards, there are tangible proves of falsification performed on official document and proves as well as hiding from the public. In this transitional period for the Court, when the previous President of the Court is being replaced with a new one, both under criminal investigation by Special Prosecution Office, and instead of being open to the public through revealing all facts on their disposal, they tend to evade from legal responsibility for their deeds, hiding in this way under the immunity. These are very disturbing facts for the whole community bit for the Court itself which is the "final authority in the Republic of Kosovo regarding interpretation of the Constitution" (Article 112, para. 1).


All these objective and subjective weakness of the judiciary and judges have impacted on citizens’ complete loss of confidence in institutional justice - the judiciary, weakness preceded from previous years, but becoming harsher each year.  More than once the Ombudsperson has warned responsible public institutions, even from this podium, regarding this dangerous phenomenon.  This loss of trust in majority of case has motivated people to take justice into their own hands by resolving their disputes outside the judicial system, often ended tragically. In this way, we have cases when a civil dispute was converted into criminal dispute. Evidence has been disclosed regarding these cases in this Report.


The trust among the state and its citizens, which involves all possible forms of communication, is solely based on respect of codified social norms- laws. The core of this trust lays on the integrity of state officials- public authorities. The trust has to do with respect for laws as well as establishment of internal efficient acting mechanisms of public authorities for resolving citizens’ complaints.


When speaking for the public administration, violation of human rights and freedoms, violation of basic principles of a modern public administration such as non-discrimination and proportionality, apart legal infringement comprise also severe violation of ethical action. Infringement of laws from public authorities themselves and particularly unethical actions, even just in one case which remains unsanctioned, diminishes entirely any trust on the state and comprise core prove of maladministration and failure of administration system.


A public administration with a democratic culture within a rule of law state should not suffer neither from legal activism of politics nor from political activism of the judiciary. These two antipodes of offensive action of separated powers necessarily ought to melt within one democratic culture of legal institutional interaction, where a separation line is a norm legitimated democratically, which ought to be par bone respected.


Surely such merger, where judicial review becomes an integral part of administrative action as public process, guarantees complementary role of the judiciary and the administration in a democratic society as a norming justice, socially acceptable and institutional applicable. Only on such societies where judicial review of the public administration actions is not understood as interference into administrative procedure, but as its indivisible part, we can speak of legal security, respect for human rights and freedoms within the administrative process.


In order to achieve this, it is demanded not solely construction of political culture of not intruding as well as of any way of impact in judiciary and judges as individuals, but of a culture of understanding that judicial division of justice is nothing else than continuation of state administrative action. This liability is requested by us today, tomorrow and in the future from Europe, part of which we intended to become. This is also demand by European Convention on Human Rights if we want to be a part of European institutional justice.


In the Annual Report of 2013, reviewed by the Assembly, the Ombudsperson stated:


Observance of fundamental human rights and freedoms, and good governance, is an obligation of public authorities. Therefore, the Ombudsperson invites all responsible persons in public institutions not to ignore the citizen’s complaints. Also, invites public authorities to take Ombudsperson's recommendations seriously and treat them as constructive contribution, because they present a good opportunity to learn from.


Unfortunately, as shown in this Report, majority of public institutions, particularly the highest authorities of the state, did not accept this invitation.


However, the Ombudsperson would like to express his appreciation to all officials, who during 2014 were responsible and willing to collaborate with the OI, in compliance with their legal and constitutional liabilities. The Ombudsperson Institution welcomes ongoing cooperation with these officials as well as calls upon others, particularly those on the head of the state to follow good practice in this direction to order to enable sustainable and hasty advancement of human rights in the Republic of Kosovo.


I would like to thank you for your attention and I express my readiness to respond to any question you might have.

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