“A victim’s personal interest and rights in the criminal proceedings before the Specialist Chambers are notification, acknowledgment and reparation."
The relevant provisions regarding reparations before the Kosovo Specialist Chambers can be found in the Law on Specialist Chambers and Specialist Prosecutor’s Office (Law No. 05/L-053).
Article 22 of the Law provides that the Trial Panel may in its judgment include a decision on the scope and extent of any damage, loss and injury to, or in respect of, victims or may limit its decision to the identity of victims.
If an accused is found guilty, the Trial Panel may:
make an order directly against the accused specifying appropriate reparation to victims collectively or individually or
refer Victims to civil litigation in the other courts in Kosovo.
Article 44 of the Law further specifies that the Specialist Chambers may order only the convicted person to make restitution or pay compensation to a victim or victims collectively or may order the forfeiture of property, proceeds and any assets used for or deriving from the commission of the crime and their return to their rightful owner and sale and share between victims under Article 22 (“a Reparation Order”).
Case of Prosecutor v. Mr Salih Mustafa (KSC-BC-2020-05)
The Trial Panel conducted the reparation proceedings in parallel with the criminal proceedings and at quite an early stage in the proceedings appointed three experts. The experts were requested to prepare a report clarifying whether the national courts in Kosovo offered a realistic avenue for the victims of the crimes in this case to claim reparations. All three experts came to a similar conclusion, namely that referring victims to the courts in in Kosovo would not a feasible possibility (link to reports).
On 4 February 2022, the Panel issued a decision in which it ruled that in case of a conviction, it will not refer victims to civil litigation in Kosovo courts pursuant to Article 22(9) of Law but will issue a Reparation Order (link to decision).
To determine the extent of damage, loss and injury the Trial Panel appointed a medical expert and a financial expert.
The Reparation Order was issued on 6 April 2023 following the conviction of Mr Mustafa. The public redacted version can be found HERE.
In the Reparation Order the Trial Panel found that the conviction and sentencing in the Trial judgment constitute already a remedy for the Victims which is foreseen under the right of acknowledgement.
The Panel ordered Mr. Mustafa to pay an overall sum of €207,000 as compensation for the harm inflicted on the victims of the crimes for which he is convicted.
The Panel determined that compensation for each of the victims on an individual basis constitutes the most appropriate type and modality of reparation and ordered varying amounts to be paid to each of the eight participating victims, ranging from €2000 to €80,000. These amounts followed the Victims’ Counsel’s request, which the Trial Panel considered to be reasonable and to reflect the scope and extent of the harm suffered by the victims.
The Panel noted that its jurisdiction in this case will cease with the issuance of this Reparation Order. The Panel therefore invited the President of the KSC to designate a judicial authority which will be in charge of monitoring and overseeing the implementation and execution of the Reparation Order.
While the Panel recalled that the responsibility to pay the compensation lies exclusively with Mr. Mustafa, they noted that Mr. Mustafa currently does not have the means to fully comply with the order. Therefore, the Panel emphasized that other actors ought to step in, in order to execute the Reparation Order, especially Kosovo. In this regard, the Trial Panel indicated that Kosovo’s current Crime Victim Compensation Program could be an alternative to execute the Reparation Order, although the maximum sums which can be awarded under this program are less than the amounts established in the Reparation Order.
Therefore, the Panel invited Kosovo to create a new reparation mechanism for victims of crimes within the jurisdiction of the KSC in order to ensure an equal treatment between the suspects and accused before the KSC, who are financially supported for their defence through the Kosovo budget, whereas nothing is provided for the victims of crimes within the jurisdiction of the KSC. Furthermore, the Panel observed that the legislation in Kosovo addressing harm and injuries suffered in the context of the war in Kosovo in 1998-1999 refers exclusively to the victims of the enemy forces which, in view of the Panel, creates a discrimination between the victims of this war.
In addition, the Panel recommended the establishment of a trust fund for victims of crimes under the jurisdiction of the KSC, at the initiative of the KSC, in case Kosovo fails to uphold its obligations towards victims in a reasonable time through the establishment of a reparation mechanism. Such trust fund should be financially supported above all by Kosovo as well as by other States and donors wishing to support victims.