Oregon State Bar Bulletin — FEBRUARY/MARCH 2003
|Law & Life|
Seeking a return to law and order
By Johnathan S. Haub
Kosovo is where it all began. In 1987, Slobodan Milosevic chose the cradle of Serbian history to make his famous speech, while betraying his friend, then President of Yugoslavia, Ivan Stambolic. He told Serbs, 'You will not be beaten again!' in connection with a staged demonstration in Pristina televised around Yugoslavia with the complicity of the Communist television service. Milosevic pushed his colleague aside, and presided over Yugoslavia through its breakup, war with Slovenia, Croatia, Bosnia, and later, with NATO. The war, and his fate, ended where it had started, in the poorest of provinces — Kosovo.
As an autonomous province in Yugsolavia, Kosovo had a parliament, a court system, a supreme court, and a constitutional court. It shared federal criminal and civil procedure codes with the rest of the Yugoslavia, but had its own criminal code (augmented by federal and some Serbian criminal provisions). As is often found in other socialist systems, executive branch and party influence in the judiciary was common.
In 1989, Kosovo’s autonomy was severely restricted, with power over the police, courts, civil defense and economic, social and educational policy taken by Serbia proper. Virtually all Kosovo Albanian judges and prosecutors were dismissed from their positions. While some began work as private lawyers, many were forced completely out of the legal profession.
In 1992, Serbian authorities ceased administrating the judicial/bar examination for law graduates wishing to enter the profession of lawyer, judge or prosecutor in Kosovo, further restricting the access of Kosovo Albanians to the legal professions. Ethnic Albanians were largely ignored as Serbia warred against other breakaway republics. Until, that is, 1999. Milosovic sent in 60,000 soldiers and special police, presiding over even more 'ethnic cleansing.'
Following the end of the war in June 1999, court facilities were dilapidated and in a state of severe disrepair. Many who had served in the judiciary during the previous 10 years had fled the province. Thus, those legal professionals remaining in Kosovo lacked recent judicial experience and many had been outside the practice of law for a decade. Moreover, the experience from the prior socialist system served as poor preparation for work in the new democracy. Few if any had any direct knowledge of modern democratic and international human rights legal standards.
After the 1989 usurpation of Kosovo’s autonomy, most, if not all, Kosovo Albanians either withdrew, or were forced, from the Pristina Law Faculty; instead, they participated in a shadow educational system run by Kosovo Albanian professors and legal professionals in their homes. This home-provided system of legal education was substandard at best, and it is widely acknowledged that this generation received a less than adequate legal education under the trying circumstances of the period. Kosovo Albanians could serve as 'avocats,' but not as prosecutors, judges or law professors.
Kosovo Albanians have now returned to the Law Faculty in Pristina, and to positions as prosecutors and judges throughout Kosovo. Kosovo Serbs (largely confined to areas of northern Kosovo and to the Kosovo Force-protected enclaves elsewhere) are unable or unwilling to attend the law school in Kosovo, and now serve as avocats in the relatively rare instance they appear before the Kosovo courts. (Many Serbs in Kosovo speak Albanian as well as Serbian, though the languages are radically different). Kosovo Serbs wishing to finish or commence a legal degree program will do so in Belgrade, or perhaps in other former republics of Yugoslavia. The hatred generated by the last 12 years will not be quickly put aside, whether it be by Serb or ethnic Albanian. These wounds will not heal quickly.
While significant improvements at the Pristina Law Faculty have been taking place under the United Nations Mission in Kosovo (UNMIK) administration, reforms are sorely needed. In particular, respondents highlighted the need to make the education at the Law Faculty more oriented towards practical skills. A visit to the law school in Pristina revealed Spartan conditions, with blackboard, chalk and a few chairs. The class I joined was waiting for an adjacent class to finish, so they could retrieve chairs and begin their class. 'Textbooks' consisted of photocopied materials printed in Albanian — expensive and poorly copied.
The judicial/bar examination resumed in Kosovo on Dec. 14, 2001. It will be administered every three months. The Organization for Security and Cooperation in Europe (OSCE) has supported and fostered the Kosovo Judicial Initiative. OSCE, the Council of Europe, ABA/CEELI and other partners have provided numerous seminars for judges and prosecutors since September 1999. Training has covered a variety of topics and has focused on criminal procedure and the introduction of international human rights standards.
The lawyers and judges of Kosovo are dedicated and hard working, eager to regain access to justice and willing to make sacrifices to revitalize the judicial system of their beloved Kosovo. However, the Kosovo legal professionals face challenges few American lawyers can imagine. Kosovo is poor, occupied by foreign troops and administered by a UN Mission which is slow moving and bureaucratic beyond belief. The emerging Kosovo Police Service is being tutored to democratic standards while UNMIK police from around the world apply their own style of investigation to criminal cases. These police will replace Serbian military and special police who were feared and despised by Kosovars for almost a decade.
In the murder trial we observed in Peja/Pec ('Pay-ja' in Albanian, and 'Pesch' in Serbian), a five-judge panel heard the case; there are no juries in Yugoslavia. The presiding judge was German. He spoke English, not Albanian. A visiting international judge from Bosnia had a translator to convert Albanian testimony into Bosnian (Serbo-Croatian). The three lay judges had translators to translate the judges’ comments into Albanian. The prosecutor was in heavy black robes and wearing a wig. He was from Gambia, thankfully speaking English, but needed translation for all the rest. The victim’s representative, seated next to the prosecutor, posed questions in Albanian. As is common, a parallel civil case traveled with the murder case, with the 'civil' lawyer participating in the trial, along with the prosecutor. The defendant was facing the court, in the 'dock' distanced from his legal counsel, who passively asked the court to take notice how witnesses talked of how the victim provoked the fight, and how some said, 'The defendant saved my life.' Still, oral advocacy is not well developed in the continental system. The hardest working figure in the trial was the presiding judge, who reviewed the evidence developed by the investigating magistrate, and summarized the evidence before all assembled. A record was made by a reporter who sat in the audience, typing summaries on a laptop. The judge determines what the record says, despite protests of the parties. You get the picture.
While many criminal cases are tried by 'Internationals' due to their serious nature, the day-to-day business of justice is handled by hard working lawyers, intent on doing a good job, and proud of their return to the legal profession. In the end, the work of the justice system will return to the Kosovo people. How that will look, in terms of ethnic Albanian-Serb participation is anybody’s guess. Much remains to be done as justice seeks to prevail in poor and dusty Kosovo. Emerging partnerships with law schools outside Kosovo and volunteer programs sponsored by ABA/CEELI, OSCE and the Council of Europe will contribute to the continuing progress of justice in the province known as Kosovo.
ABOUT THE AUTHOR
Johnathan S. Haub is assistant U.S. attorney in Portland. Haub served as a military police and civil affairs officer for 32 years in the U.S. Army Reserve. He served active duty tours in Vietnam, Haiti and Bosnia & Hercegovina, and recently commanded the 364th Civil Affairs Brigade in Portland. He is a 1976 graduate of Lewis and Clark’s Northwestern School of Law and former chair of the OSB Criminal Law Section. The opinions in this article are his, and not necessarily those of the Department of Justice.
© 2003 Johnathan S. Haub