The Kosovo Specialist Chambers (KSC) is a criminal court with a mandate to try certain crimes allegedly committed during and after the conflict in Kosovo, including war crimes and crimes against humanity. The court was established under Kosovo law but it is located in the Netherlands, in The Hague, and staffed by nationals of the European Union and five other contributing states.
As a court of law, the KSC is focused on conducting fair, impartial and independent judicial proceedings in which the rights of the accused and other participants in the proceedings are guaranteed, along with the safety and security of witnesses and victims.
The Specialist Chambers will only hold accountable persons for the crimes they committed individually, and will not hold accountable any ethnic group, organisation or community.
The KSC and Specialist Prosecutor’s Office (SPO) were established pursuant to an exchange of letters, or international agreement, ratified by the Kosovo Assembly in 2014. Kosovo enacted its obligations from this international agreement through a Constitutional amendment (Article 162 of the Kosovo Constitution) and the Law on Specialist Chambers and Specialist Prosecutor’s Office (Law), both adopted by the Kosovo Assembly in August 2015. As provided for by this framework, the KSC and the SPO are independent from Kosovo institutions.
The KSC and the SPO are two separate institutions. The SPO investigates and prosecutes alleged crimes falling within the jurisdiction of the KSC.
The Specialist Chambers comprise two organs, the Chambers and the Registry. The Chambers comprises the President and the Judges, who conduct the proceedings. The Registry manages all of the essential judicial support functions such as detention, court management, legal aid, victims’ participation and interpretation and translations.
The KSC has a specific mandate to try certain crimes allegedly committed during and in the aftermath of the conflict in Kosovo.
More specifically, according to the Law, the KSC has jurisdiction over crimes against humanity, war crimes and other crimes under Kosovo law that were allegedly committed between January 1998 and December 2000. To fall within the jurisdiction of the court such crimes must also have been committed or commenced in Kosovo or either the perpetrator or the victim must have been from Kosovo or the former Federal Republic of Yugoslavia. The subject matter jurisdiction is further defined by reference to the Council of Europe Parliamentary Assembly Report of 2011, in Article 6 of the Law.
The court can also try crimes against the administration of justice, such as, for example, witness intimidation, where these relate to its proceedings or officials.
The official languages of the Specialist Chambers and the SPO are Albanian, Serbian and English. All courtroom proceedings are conducted with simultaneous translation into all three languages and members of the public who follow the proceedings from the public gallery or online can choose whether they wish to hear the proceedings in Albanian, Serbian or English. In addition, all of the detailed information on the website about the KSC and its operations is provided in the three languages of the court, including the foundational legal texts of the court.
When it comes to the public court records for individual cases, these are posted as soon as they are made public in their original language, which is usually the working language of the case, and translations are made available as soon as they are ready. The Law provides that in any given case, the Judges shall decide on the working language to be used in the proceedings. In all of the cases currently before the KSC, both the Prosecution and the Defense have asked that the working language be English.
The KSC and the SPO translate all public documents and filings into the languages of the court as rapidly as possible. In light of the requirement to ensure that documents are translated to the highest standards, it can take some time before translations into Albanian and Serbian are completed in cases where the working language is English.
In order to find summaries of all the cases, together with links to key documents such as the indictments in all three languages, go to: https://www.scp-ks.org/en/cases
Summaries of all ongoing cases before the KSC, together with links to key case documents, including the indictments, can be found in Albanian, Serbian and English at: https://www.scp-ks.org/en/cases.
In addition, the public court records can be accessed in all three languages at https://repository.scp-ks.org/?lang=eng.
The court calendar lists all scheduled public hearings. Any changes or delays are reflected in the Live Update. All public hearings are streamed in the three languages of the court and can be watched at: https://www.scp-ks.org/en/streaming.
Members of the public are also welcome to follow the proceedings in person from the public gallery of the courtroom. However, due to current public health measures to limit the spread of COVID-19, space in the public gallery is limited and pre-registration is required.
When the Specialist Prosecutor considers that there is enough evidence to bring charges against one or more suspects in relation to crimes that fall within the jurisdiction of the KSC, the Specialist Prosecutor will submit an indictment for review by a Pre-Trial Judge appointed by the KSC President.
The Pre-Trial Judge examines the evidence supporting the indictment to decide if a well-grounded suspicion exists against the suspect or suspects. Within six months, the Pre-Trial Judge shall decide either to confirm or dismiss the indictment in whole or in part.
If the indictment is confirmed by the Pre-Trial Judge, the suspect becomes an accused. The confirmed indictment will be given to the Accused in a language he or she understands.
An initial appearance is scheduled by the Pre-Trial Judge within seven days after the accused is provided with the indictment. The purpose of the initial appearance is to ensure that the accused’s rights are being respected. For example, the Pre-Trial Judge shall make sure that the accused’s right to counsel has been respected. The Pre-Trial Judge shall ensure that the accused understands the indictment. The accused will also be informed that, within 30 days of the initial appearance, he or she may plead guilty or not guilty or that the accused can immediately do so.
The indictment shall be made public no later than at the accused’s initial appearance before the Pre-Trial Judge. Until the indictment is made public, its content and supporting documents are strictly confidential.
During the pre-trial phase, following the initial appearance, the Pre-Trial Judge holds hearings, as needed, for the preparation of proceedings, and to decide on initial challenges raised by the accused. The Specialist Prosecutor must share with the Defence the evidence supporting the indictment and statements of all witnesses the Specialist Prosecutor intends to call at trial. Likewise, the Defence must share with the Specialist Prosecutor a list of witnesses and any other evidence that they intend to use. This process is called disclosure.
The pre-trial phase is also the period during which victims may apply to participate in the proceedings and the Judge will decide on these applications.
When preparations are complete, the Pre-Trial Judge shall transfer the case file to a Trial Panel of three Judges and one reserve Judge.
Witness protection is of the highest priority for the KSC. A specialized unit deals with witness protection and support. Judges can also order a variety of protective measures for witnesses, such as assigning pseudonyms and using voice or face distortion. Violations and breaches of court-ordered protective measures are offences against the administration of justice, which are severely punished under provisions of the Kosovo criminal code applicable before the KSC.
Persons who can demonstrate that they have personally suffered harm, including physical, mental or material harm, as a direct result of alleged crimes contained in a confirmed indictment, may apply to participate in proceedings. A Judge will then decide whether the person who applied can become a participating victim before the KSC.
Participating victims in proceedings at the KSC will form one or more groups. Each of these groups participates through a lawyer, called the Victims’ Counsel. Victims’ Counsel may be present at court hearings and will keep the victims informed throughout the proceedings. Victims’ Counsel will seek victims’ views, hear their concerns and bring these to the attention of the relevant Judges. Victims who participate in proceedings before the KSC have certain rights, including the right to notification, acknowledgement and reparation.
More information about victims’ participation, including how to apply, can be found at: https://www.scp-ks.org/en/specialist-chambers/victims.
The rights of accused before the KSC are based on the Constitution of Kosovo and the highest standards of international human rights law and they are described in detail in Article 21 of the Law. For example, an accused shall be presumed innocent until proven guilty beyond a reasonable doubt.
The KSC shall protect the fundamental rights of an accused, including by providing adequate time and facilities to prepare his or her defence. An accused has the right to counsel, who is qualified to be on the KSC’s List of Counsel. If an accused does not have enough money to pay for counsel, the KSC will pay for the counsel. An accused has the right to be tried within a reasonable time in his or her presence.
The Rules of Procedure and Evidence (Rules) provide a blueprint for how the Judges are to conduct the proceedings in a manner that protects these rights through each step of the judicial process.
For example, at the very first appearance of the accused before the court, before the preparations for a trial begin, the Pre-Trial Judge must make sure that the right of the accused to be represented by a lawyer is being respected, that the accused is informed of the charges against him or her in a language he or she understands and that the accused understands that he or she may plead guilty or not guilty.
The right of an accused to defend himself or herself through a lawyer of their choosing protects every single accused, including those that lack the financial means to pay for such a lawyer themselves. To guarantee this right for such an accused, the Registry administers a transparent legal aid scheme consistent with best practices in the field.
To have a fair trial, the accused must have access to the evidence or facts that the Specialist Prosecutor intends to use during the trial. This is addressed through a process called “disclosure”, whereby the Specialist Prosecutor must make available to the defence all supporting evidence to his case. Moreover, if the Specialist Prosecutor finds any information that would suggest the innocence of the accused or mitigate his or her liability, the Specialist Prosecutor must disclose this immediately.
The disclosure of evidence is subject to restrictions only where strictly necessary, for example, when a Judge orders the redaction of information, the use of pseudonyms or other measures to protect witnesses.
A fair and public hearing is another basic right. As a general principal, after an indictment becomes public, proceedings will be open to the public and people can watch them in Albanian, Serbian or English on the KSC website. Judges may choose to close certain parts of the proceedings, for reasons such as the protection of witnesses, victims and anyone else who has been in contact with us.
The Rules also provide the defence with, among other things, the ability to question, cross-examine and refute the evidence provided by the Specialist Prosecutor, and present evidence and witnesses in support of their own case.
At the end of the trial, a panel of three Judges will decide for each charge if the guilt of the accused was proven beyond a reasonable doubt. The accused has a right to appeal the judgment to a separate Appeals Panel and, under certain circumstances, a right of third instance appeal to a Supreme Court Panel.
When other remedies provided by the Law are exhausted, individuals who believe that their fundamental rights or freedoms guaranteed under the Kosovo Constitution have been violated during the proceedings, can refer the matter to the Specialist Chamber of the Constitutional Court.
Where suspects or accused before the KSC can demonstrate that they cannot afford to pay for their defence and if they do not receive legal aid through other means, the KSC will pay in full or in part for a counsel of their choosing who is qualified to be on the List of Counsel. The legal aid covers the remuneration of counsel and members of their team and will be paid directly to counsel.
The Legal Aid Regulations exemplify best practices in legal aid standards, guaranteeing compliance with the fair trial principles enshrined in the Constitution of Kosovo and the Law whilst ensuring the sound financial management of the legal aid scheme’s resources.
The legal aid is calculated by the Registrar, in consultation with the competent panel and counsel, taking into account the complexity level of the case and the services to be provided by counsel during each stage of the proceedings. Additionally, any costs that may arise during the course of investigations or as a result of the need for translations may be covered up to a certain amount.
The Regulations transparently set out how to apply for legal aid and which documents will have to be provided to the Defence Office. More specifically, a declaration of means form will have to be submitted as part of a request for legal aid. The Defence Office will conduct a thorough assessment of the financial means of the applicant to decide whether full or partial legal aid should be dispensed. Where an applicant does not cooperate or provides false information, the request for legal aid will be denied. If the applicant is not satisfied with the decision of the Registrar, he or she has the right to appeal that decision before a panel of Judges.
The Regulations specify the maximum fees and other eligible costs that may be paid upon presentation of an invoice. The procedure for oversight and monitoring by the Defence Office of the spending of the legal aid is also contained in the Regulations.
More information about legal aid is available at: https://www.scp-ks.org/en/counsel/legal-aid.
Where are suspects and accused persons detained? What is the protocol for the treatment of persons detained in the Detention Facilities of the KSC?
Article 34 of the Law provides that the Registrar shall be responsible for managing and administering the detention function and facilities for the Specialist Chambers. The KSC Detention Facilities are located in a prison facility in Scheveningen in The Hague and are managed by the Registry Detention Management Unit.
The highest international standards are applied and upheld in the Detention Facilities. A range of protections are in place to this end, including internal and external monitoring by the International Committee of the Red Cross and the KSC Ombudsperson.
All detainees are presumed innocent until proven guilty beyond a reasonable doubt. Discrimination of any kind is prohibited.
The Detention Management Unit ensures the well-being of detainees in a safe and secure environment. Detainees are allowed daily access to fresh air and physical exercise, as well as the opportunity to participate in other suitable recreational activities. They are allowed reading and writing materials and have access to a library that contains books, magazines, and newspapers in their native languages. In addition, they have access to radio and television programmes and may attend available religious or spiritual services.
Detainees receive at least the same standards of health care in the Detention Facilities that are generally available in the Netherlands.
More information about the administration of the Detention Facilities, including information on visits, can be found at: https://www.scp-ks.org/en/specialist-chambers/detention
The Ombudsperson of the KSC monitors, defends and protects the fundamental rights of any person interacting with the KSC or the SPO.
The Ombudsperson may:
- Receive complaints and examine their admissibility;
- Conduct inquiries into admissible complaints;
- Enter and inspect detention facilities;
- Facilitate mediation and reconciliation, where appropriate;
- Make recommendations to the President of the KSC and the Specialist Prosecutor; and
- Make referrals to the Specialist Chamber of the Constitutional Court.
Any person interacting with the KSC or the SPO alleging a violation of his or her fundamental rights can make a complaint to the Ombudsperson.
They will need to show that they have interacted with the KSC or the SPO. Additionally, the complaint must be related to an alleged violation of the person’s fundamental rights by the KSC or the SPO.
Further information about the Ombudsperson, including how to file a complaint can be found at: https://www.scp-ks.org/en/ombudsperson/role-ombudsperson.
The Rules of Procedure and Evidence (Rules) are the equivalent of a criminal procedural code and regulate in detail the conduct of judicial proceedings before the KSC. The Rules were adopted in March 2017 during the first Plenary of the Judges of the Specialist Chambers. The Rules must be consistent with the Law on Specialist Chambers and Specialist Prosecutor’s Office and must reflect the highest standards of international human rights law.
In drafting the Rules, the Judges have drawn on the best practices and experiences of other tribunals in order to provide for proceedings that balance the need for expeditiousness with the need to ensure sufficient time for all of the procedures that ensure due process of law and the rights of the accused.
As an additional safeguard, the Law requires that the Specialist Chamber of the Constitutional Court must review the Rules and any amendments to them, in order to ensure their compliance with the highest international human rights standards, including those set out in the European Convention on Human Rights and the International Covenant on Civil and Political Rights, as guaranteed in Article 2 of the Kosovo Constitution.
After a constitutional review by the Specialist Chamber of the Constitutional Court, the Rules entered into force in July 2017, rendering the KSC fully judicially operational.
There are several ways in which the independence and impartiality of the Judges is ensured in proceedings before the KSC.
In the selection process, the Law requires that the Judges be persons of high moral character, impartiality and integrity. In addition, they must possess the qualifications required in their respective States for appointment to the highest judicial offices.
All candidates are assessed by an independent Selection Panel, including two international Judges with substantial international criminal law experience. The selection process is carried out in a manner and with the clear goal to ensure the selection of highly professional and independent Judges who meet the requisite standards set by the Law.
Judges appointed to the Roster cannot receive instructions of any kind and are also barred from engaging in any activity likely to interfere with their judicial functions or affect the confidence in their independence.
In addition, the Judges of the Specialist Chambers adopted as their first normative document a Code of Judicial Ethics, which obliges them to adhere to high standards of behaviour. A breach of these standards by a Judge may be addressed through a disciplinary procedure, which in turn may result in sanctions against that Judge, as set out in the Code. Among such sanctions is the dismissal of a Judge from the Roster.
It should be underlined in this context that only the Plenary of Judges can decide whether to dismiss a Judge, which is an additional safeguard for the independence of the Judges and the integrity of the judicial proceedings before the KSC.
Establishing and maintaining a dialogue with people in Kosovo about the mandate and work of the KSC has been a pillar of the KSC communication strategy from the very beginning of its operations. The Outreach programme benefits from invaluable feedback and recommendations on its outreach and communications activities from the Court Information Network, a group of 15 NGOs from Kosovo and Serbia established by the KSC in 2018.
With the generous support of Switzerland in 2018 and 2019, the Outreach team was able to increase its activities in Kosovo and established a pace of near-monthly visits to Kosovo.
During these visits, KSC staff held events organised in cooperation with partner NGOs, with audiences all over Kosovo from different communities. These meetings allowed KSC representatives, including senior management, to hear the questions and concerns of young people, students, community representatives, journalists and others, and to provide answers and information about the KSC and its work. Since 2018, the Outreach team has held 56 events in communities all over Kosovo, reaching close to 1,500 participants.
In 2020, the Swiss government extended its support with a generous two-year grant for the second phase of the outreach programme, which includes maintaining a regular dialogue through outreach events and increasing awareness of the KSC among the general public of Kosovo through television clips and greater engagement with the mainstream media.
In response to the limits imposed by the global pandemic on travel and public gatherings, the Outreach team, in cooperation with KSC NGO partners, moved its interactive events online in April 2020. In 2020, the Outreach team held over 20 online events with audiences in Kosovo and Serbia, and is looking forward to returning to in-person events as soon as the public health situation allows.
The KSC welcomes visitors who would like to attend public hearings from the gallery of the courtroom. In addition, the KSC offers students and other groups the possibility to visit the KSC and learn more about their mandate and proceedings. Journalists are welcome to attend public hearings and use the media room to work or exchange opinions with other journalists. Please find more information about the visitors programme and visits in general here: https://www.scp-ks.org/en/ksc-outreach/visits-ksc.
During the pandemic, the KSC introduced measures throughout the organisation in line with the recommendations and decisions of the relevant public health authorities while also maintaining business continuity and the full operations of the KSC. These measures included remote working and meeting, wherever possible, using existing technologies. Despite the adjustment in working methods during that period, the KSC continued to move ahead in fulfilling its mandate.