KLI: Law on Mediation is not being implemented, the justice system violates the rights of the parties – Latest News
The Kosovo Law Institute (KLI), with the support of the US Department of State – Bureau of International Narcotics and Law Enforcement Affairs (INL) and NED, on Friday, held a virtual roundtable in which the report was presented ” Challenges of mediation in Kosovo ”.
KLI researcher, Gzime Hashani, stated that despite the fact that Kosovo has built an advanced legal infrastructure in this area, the judicial and prosecutorial system still does not adequately use this way of resolving cases. She said that by acting in this way, the justice system in addition to violating the rights of the parties, judges and prosecutors burden themselves with cases that could potentially be resolved in mediation proceedings.
“Hashani stated that KLI has found that in 2017 and 2018 by the court very few cases have been referred to mediation, while there is a significant increase in 2019 and a regression in 2020.
Furthermore, according to Hashani, during 2017 all Kosovo prosecutions have referred to mediation a total of 682 cases, while in 2018 this number has increased to 904. She said that this number had increased significantly in 2019, when prosecutors had referred to mediation a total of 2,034 cases, while during 2020, when the work of the State Prosecutor was influenced by the situation created by the COVID-19 pandemic, the State Prosecutor referred to mediation a total of 1,608 cases “, it is said in the press release.
Hashani stated that in accordance with the requirements of Law No. 06 / L-009 on Mediation, the Chamber of Mediators was established with the approval of the statute on November 2, 2019 by the General Assembly of the Chamber of Mediators.
However, according to her, this Chamber had functioned illegally, due to the fact that in addition to the approval of the statute by the General Assembly, the Law requires approval by the Ministry of Justice. The same said that the statute approved by the General Assembly of the Chamber of Mediators in this case, has not been approved by the Ministry of Justice until September 21, 2020.
By acting in this way, according to Hashani, KLI has found that the Chamber of Mediators, which acts in accordance with the law and its statute, in this case has acted without legal basis, as its statute has not been approved by the Ministry of Justice, consequently has not been in force.
According to Hashani, KLI has found that there is a lack of data regarding the professional aspect of licensed mediators and the need to raise civic awareness for the implementation of the mediation procedure.
KLI researcher, Hajrije Krasniqi, stated that in terms of fulfilling the obligations deriving from the new Law on Mediation, KPC and KJC have approved regulations for referring cases in mediation.
Krasniqi said that despite the fact that there is a clear provision for mandatory mediation, which obliges judges to proceed with these cases in mediation procedure, KLI finds that this area of mediation in Kosovo has not found the required implementation “, it is said further in the notice.
According to her, compulsory mediation has not managed to find application in practice as required by law, as the number of cases referred to compulsory mediation is very low.
Further, Krasniqi said that despite the obligation of judges to refer each case to mediation, KLI during the systematic monitoring of the judicial system has found that this provision does not apply in every case. She said that during the monitoring, KLI found concrete cases, suitable for mediation, in which judges did not inform the parties that their case could be referred to mediation. Respectively, as she said, the judges did not enable the parties to express their will to resolve the appropriate mediation case through this procedure.
By acting in this way, according to Krasniqi, the judges initially charged themselves with cases, which they were able to refer to the mediation procedure at the will of the parties. She said that in order for such a will to exist, first of all, information is required from the judges, respectively respect for the article of the Regulation.
Further, the senior researcher from KLI, Yll Zekaj, stated that almost three years have passed since the entry into force of the law, which is considered a very modern law and a law that meets all the conditions to have a mediation developed in the legal system. .
He said that we have had a lot of investments from international donors, to have a developed mediation system, but that even after three years the law is not being implemented.
During this roundtable, according to the press release, Zekaj disclosed the recommendations given by KLI for the bodies involved in this process.
According to him, the KJC, KPC, court presidents and chief prosecutors should take concrete actions to increase the implementation of mediation in Kosovo, moreover, should constantly measure the trend of referring cases in mediation proceedings and reports of this nature. publish it on official websites.
“Judges and prosecutors should refer to mediation every suitable case for mediation and refer to compulsory mediation all cases required by law,” he said.
Zekaj said that KLI has recommended that court presidents, in cooperation with judges, compile lists of all cases where mandatory mediation is required and the same to be processed in mediation.
Also, Zekaj said that lawyers should ask the courts to refer to compulsory mediation, in cases where this is required by law.
The representative from the Chamber of Mediators, Adelina Sopi, said that the report drafted by KLI fully reflects the current state of the mediation process and the current challenges that have been following this process for many years now.
“As the Kosovo Chamber of Mediators we have been established according to the law, but we have many delays in functioning due to the change with the government, but also the situation with the pandemic which has greatly influenced the creation of a structure that would function and help the process of mediation “, declared Sopi.
“She said that the Chamber of Mediators has marked success in creating the offices of the Chamber, thus creating the conditions for holding mediations with reference, but that according to her there is a lack of infrastructure.
Sopi said that this procedure is being challenged by technical irregularities, where as she said, the persons responsible for organizing mediation sessions are not sufficiently prepared.
On the other hand, the judge of the Basic Court in Prishtina, Dren Rogova, stated that the report published by KLI is very critical, especially towards the judiciary.
He said that with the obligatory mediation a great burden is placed on the judiciary, which it should not have, but as he said, the legislator has foreseen to be burdened with the big bill of administration of a great work which is the reference of mediated cases “, it is said in the announcement.
Judge Rogova said that the number of cases that a judge is obliged to refer to mediation proceedings is large, and according to him, if on average a judge has 800 cases, it falls to an average of 400 cases to refer. in mediation, adding that such a thing is difficult to achieve due to the resources and staff in the Court of Prishtina.
Further, Rogova stated that judges do not hesitate to refer cases to mediation, but it is not possible to administer such a procedure in the absence of resources.
“Judges are between judging their cases and carrying out their day-to-day affairs, including writing and drafting judgments and other technical work that a judge carries out and referring cases through mediation,” he said.
The judge said that due to the large number of cases, cases are being dragged out and according to him, it is neither fair nor unethical when after 5-10 years when a party comes to the initial hearing, to be told that mediation must now be tried.
According to the announcement, Rogova said that the Kosovo Judicial Council should take measures to provide all the mechanisms for this law to function properly, adding that the courts should be provided with support staff, so that cases are referred to mediation in reasonable time and the parties are notified of the alternative settlement of disputes, with the deadline provided by law.
While the judge of the Basic Court in Prishtina, Fatime Dërmaku, stated that the findings are more grounded, adding that they are very soft from what is on the ground.
Judge Dërmaku stated that during her work in the General Department she had referred any suitable case for mediation, but said that during her work there were cases related to the Kosovo Electricity Distribution and Supply Company (KEDS), which did not have never agreed to resolve the case through a mediation procedure.
Judge Dërmaku praised the work of mediators, as according to her, the agreement is made by mediators in court, while adding that mediators should be more engaged in terms of promoting the mediation procedure.
During this roundtable, lawyer Kujtim Kërveshi said that mediation should not be seen as a formal procedure, as he said that it is not so and that in all countries of the world mediation is not so complicated.
Kërveshi said that the initial purpose of the Law on Mediation, in terms of mandatory mediation, was not to put a burden on judges, but according to him the idea was that the issue did not reach them at all.
He further added that mediation is very unlikely to take place in criminal proceedings and that according to him, mediation should not be seen as a procedure for dismissing prosecutors.
Kërveshi said that mediation is not a highly regulated institute, as the very nature of this procedure should not be formal.
In the end, he added that during his work as a lawyer, during the drafting of the clauses, he never decides the court, but the mediation and then the arbitration.