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08.8.2016

THE OMBUDSPERSON PUBLISHED THE REPORT REGARDING DENIAL OF THE RIGHT OF ACCESS TO JUSTICE

The Ombudsperson of Republic of Kosovo today has published Ex Officio Report with Recommendations regarding the lack of access to Court building in the Northern part of Mitrovica, namely denial of the right of access to justice.



The purpose of this report is to draw the attention of responsible authorities whether the Court in the Northern part of Mitrovica is providing access to justice, and if this access is in conformity with the standard of equal treatment of citizens before Constitution.



Through this report, the Ombudsperson aims drawing the attention of relevant/competent institutions on the negative consequences of not enforcement of the Law, violation of fundamental human rights for access to justice and recommends a possible solution.


Report explains that blocking of cases in the Northern part and complete inoperativeness of the judicial system in Mitrovica for more than eight years, represents severe violation of the basic rights guaranteed by European Convention on Human Rights. The Report focuses on the right for access to justice- a fundamental right as well as tool to empower and ensure accomplishment of other rights.


Taking into account the elements by which a right for access to justice is characterised – which is required through courts, it may be established that in the case of the Court of Mitrovica, this right has been generally violated, and in particular: 1) Denial of access to information; 2) Access to court decisions, and 3) Unwillingness of the court with jurisdiction to act.



International and European law on Human Rights forces countries to guarantee the right of every individual to have access to courts – or to receive a judicial protection relating a criminal, civil, administrative issue or even to ascertain that the right of an individual has been violated. In this way, having information that over 2700 civil cases and more than 1500 criminal cases have been left un-adjudicated, this has not only discriminated a part of the citizens of Kosovo (North Municipalities), but it also constitutes a burden, and loss of credibility and reliability on the judicial system of the Republic of Kosovo.



The Ombudsperson ascertains that the citizens of the Republic of Kosovo in general, and the inhabitants of that region that fall under the territorial competence of the Basic Court in Mitrovica constantly have been denied the right for access to justice, since 20 February 2008, and to date. This denial for more than eight years of the access to the Court in the north of Mitrovica constitutes a violation of:


(1)    The right to a fair trial, which is protected by Article 6 of the European Convention on Human Rights (ECHR) and by Article 102 par. 2 of the Constitution of the Republic of Kosovo.


(2)    Upon violation of the right to access a court, it also violates the right for a legal effective remedy set forth and protected by Article 13 of the European Convention on Human Rights (ECHR) and by Article 32 of the Constitution of the Republic of Kosovo.


(3)    Right to a fair trial and within a reasonable time by an independent court established by law, which is set forth and protected by Article 6 of the European Convention on Human Rights (ECHR).


(4)    Right of judicial protection of rights set forth by Article 54 of the Constitution of the Republic of Kosovo.


(5)   Right to protection of property and possessions set forth and protected by Article 1 of the European Convention on Human Rights - ECHR (Additional protocol Paris, 20.III.1952), namely by Article 46 of the Constitution of the Republic of Kosovo.


(6)   Irregular functioning of judicial system and the denial of the right of access to court causes serious consequences also to the rule of law, strengthening of the public order and protection of the region from unlawful practices.



(7) Legal prescriptions: Criminal offenses for which, based on the Criminal Code of the Republic of Kosovo, prescriptions are foreseen, as a result of lack of access to court  and irregular functioning of judicial bodies occur after the expiry of the legal limitation foreseen.


Based on these findings, and in conformity with Article 135, par. 3 of Constitution of the Republic of Kosovo, and Article 16, par. 8 of Law no. 05/L-019 on Ombudsperson, the Ombudsperson recommends the:


1) Kosovo Judicial Council should functionalize the judicial system in the region of Mitrovica, as soon as possible, enabling access to civilian and criminal case files, which have been blocked since 2008, and hence proceed with the subsequent ones.


2) The Court in the Northern part of Mitrovica should take all measures required, to remove all physical and administrative obstacles for access to documents, and should cooperate, at the appropriate level, with the other part of branches of the Court of Mitrovica.



Ombudsperson’s full Report regarding the lack of access to Court building in the Northern part of Mitrovica, namely denial of the right of access to justice, was forwarded to responsible authorities, today on August 8, 2016. In conformity with Article 132, paragraph 3 of Constitution of the Republic of Kosovo and Article 28 of the Law No. 05/L-019 on Ombudsperson, the Ombudsperson awaits to be informed in writing on actions undertaken regarding the given case within thirty days.



 


Report with Recommendations in its full form, as it has been forwarded to the responsible authorities is published on OI official web page (here). The same is distributed to media as well.

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