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An EU funded project managed by the European Union Office in Kosovo
Catalogue of Recommendations
EU project ”Support to the Kosovo Judicial Council / Kosovo Prosecutorial Council” Contract 2011 / 271 – 244 & 2014 / 350 – 729
An EU funded project managed by the European Union Office in Kosovo
Introductory Note to the ‘Catalogue of Recommendations’
February 2016
This publication has been produced with the assistance of the EU Office in Kosovo. The contents of this publication are the sole responsibility of Human Dynamics and can in no way be taken to reflect the views of
the European Union.
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Introductory Note to the ‘Catalogue of Recommendations’
Background
The Project ‘Support to the Kosovo Judicial/Prosecutorial Council’ was in its third year of implementation when the first version of the Catalogue of Recommendations was elaborated by the Project, discussed with and adopted by the KJC and KPC, and then distributed to all stakeholders in July 2014.
This was the right time to strike a balance, and to ascertain what had been achieved in regard to the scope of the Project and what still needed to be addressed.
The Project was extended in October 2014 for 18 months, at which time new activities were included in the Project Plan.
As of this writing, the Project is at the end of the second implementation phase (October 2014-April, 2016), and the first version of the Catalogue of Recommendations was reviewed and revised according to the level of the implementation of the recommendations. Thus, the Project hereby provides the KJC and KPC with a revised version of the Catalogue containing a new column “Final comments - February 2016”. The updated version of the Catalogue aims to show the current status of the implementation of each recommendation, thereby supporting the Councils in their further activities for implementation of the recommendations.
The Project’s activities were directed at four key areas:
• Organisation, function and structure of the Councils (Component I)• System of recruitment and appointment of judges and prosecutors (Component II.1 and III.1)• System of evaluation of judges and prosecutors (Component (II.2 and III.2)• Disciplinary system for judges and prosecutors (Component II.3 and III.3)
Some additional activities were included in an addendum from 2013:
• Legal remedies against decisions of KJC/KPC (Component I)• Public Communication for KJC (Component IV)• A National Centralized Criminal Record System (NCCR) (Component IV)
The new Project plan for the extension of the Project contained 22 new activities allocated under the four components that had already been implemented, together with outputs that had been elaborated by the Project submitted to the KJC and KPC.
The newly added last column of the updated Catalogue of Recommendations named “Final comments February 2016” refers to findings of Project activities that were most recently implemented during the extension of the Project, the achievement of the Councils in the last one year and a half, the new challenges, and last but not least the comments refer to the Law amendments of the four Laws: LKJC, LKPC, LC and LSP, adopted on 28 May 2015.
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Structure of the Catalogue
In order to assess what has been achieved and what is still waiting to be addressed, the Project elaborated a comprehensive catalogue, which contains the following parts:
• the main recommendations put forward during the whole process of implementation of the project inthe key areas;
• the main responsible body for the implementation of the recommendation• a brief information on the status of implementation and actions that still need to be taken in July
2014.• an assessment on the status of implementation by using three indicators:
o ‘N’ for ‘NO’, meaning that a recommendation was not implementedo ‘Y’ for ‘Yes’, meaning that the recommendation was fully implementedo ‘P’ for ‘Partial’, meaning that the recommendation was at least partially implemented.
• A reference to international documents containing international standards (see below: internationalsstandards);
• Brief information on the status of implementation in February 2016 (the last column)
How to Read the Catalogue
When creating the catalogue, a balance was needed to be found between completeness and the readability/usefulness of the catalogue. A list that contained too many details would risk adoption of a format that would not enable a reader to get a general understanding of a situation because the document would be too focused on details. Thus, only the main recommendations were included in a condensed manner.
A wide range of recommendations was accepted by the Councils by adopting respective Regulations, Codes and Plans. Most comments and recommendations that were put forward in the context of the elaboration of the Regulations were not included in the catalogue. However, they were implemented. It should be explicitly mentioned here that the following legal acts have to be taken into account when assessing the status of implementation of the recommendations:
Furthermore, it has to be highlighted that the Project elaborated seven manuals during the first 3-year implementation phase of the Project, which contained 128 forms and templates.
• Manual on Evaluation of Prosecutors:12 templates and forms• Manual on Appointment of Prosecutors: 28 templates and forms• Manual on Disciplinary Proceedings against Prosecutors in Kosovo: 10 templates and forms• Manual on Disciplinary Proceedings against Judges in Kosovo: 9 templates and forms• Manual on Evaluation of Performance of Judges: 17 templates and forms• Manual on Appointment of Judges: 34 templates and forms• Manual on the Investigation in Disciplinary matters (ODC): 18 templates and forms
Each of these manuals contain guidance on how to implement the recommendations in the area of appointment, evaluation and disciplinary liability in the daily work of the supporting staff, the Committees of the Councils and the Councils themselves.
The on-going process of drafting and approval of new Regulations and revision of the Regulations in force carried out by the Councils with the support of international partners requires review and revision of the SOP elaborated by the Project and included in the Manuals listed above. Some of the SOPs are already revised and new SOPs were elaborated by the Project. For instance, the Project supported the drafting of the new SOP
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for implementation of the newly adopted KPC’s Regulation on Recruitment, Exam and Appointment of Prosecutors issued by the KPC on 1 December 2015. However, both Councils still need support in the revision of the most of the SOPs following the new regulatory framework.
Furthermore, the Project also elaborated a Correlation Table linking provisions of the Code of Ethics for Prosecutors with legal norms and paragraphs of the Commentary to the Bangalore Principles, which show how to apply international standards in the area of disciplinary liability. Unfortunately, when assessing the status of implementation in February 2016 it was concluded that this useful document has still not been applied by the disciplinary bodies.
Moreover, 111 job descriptions and 3 organisation charts were elaborated during the first implementation phase stage of the Project, including:
• 66 job descriptions were elaborated for KJC.• 32 for the KPC and the Secretariat of the Chief State Prosecution Office13 for the ODC.
It should be stated out that the establishment of a separate Secretariat to the KPC by the lawamendments of the LKPC requires a set of measures to be applied by the KPC, including issuing of a newRegulation, approval of a new Organigram of the Secretariat, review and revision of the Jobdescriptions, and so forth.
Last but not least, the Project assisted – mainly the KPC – in the period of transition with a view to the structure reform end of 2013, and put forward a wide range of recommendations in reference to several preparatory acts. Most of them were accepted.
Also, these documents are implementing measures by nature and thus are part of the implementation status. However, they are not, or not completely, reflected in the Catalogue.
If we would take a merely numeric approach, it is very reasonable to assume that most recommendations have been fully implemented during the first implementation phase of the Project because they are reflected in the newly adopted Regulations, Codes, job descriptions and Plans, as well as in the new SOPs contained in the Manuals which are in use. However, after the Law amendments of the primary four laws – LKJC, LKPC, LC, LSP adopted on 28 May 2015, a lot of new Regulations and revisions of the existing Regulations, issued by the Councils should be drafted and approved by the KJC and KPC. The respective amendments and new regulatory provisions reflect the procedural rules and SOPs. Thus, the Project and the Councils were involved in a very intensive process of drafting, revising, commenting and discussing the new Councils’ Regulations and SOPs during the last eight months. Both Councils approved Action Plans for issuing their respective Regulations following the law amendments. The Project activities in this regard were the subject of comments in recent Quarterly Progress Reports and the Final Report. Some of the outputs in this regard are summarized in the comments included in the newly added last column of the Catalogue.
The Project provided significant support to the Councils in the areas of Strategic Planning, Policy Development, Budgeting of Judicial and Prosecutorial Systems, establishment and development of a National Centralized Criminal Record System during the second implementation phase (October 2014-April 2016), which are analysed and assessed in the Final report. Very few recommendations in regard to the areas mentioned above are included in the Catalogue. Thus, the Catalogue should not be accepted as a comprehensive document that contains all of the Projects’ recommendations.
The Catalogue should rather be seen as a list of recommendations that directly refer to international standards and still need to be addressed and not as an overview of what has been implemented and what has not been implemented.
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With that said, it is necessary to make some more precise points:
• The Catalogue is not ordered by priority. The recommendations are listed according to their subjectmatter, and not according to their importance. It is evident that not everything can be achieved atonce. This prioritization needs to be done by the Councils, as the members of the Councils are bestaware of the urgencies of the needs and as it depends on many factors, such as the political will,allocated budget, available resources in terms of capacity, time and personnel. However, from a Rule ofLaw and fundamental rights perspective, a prioritization in general lines may be proposed, as indicated below.
• Not all recommendations are of the same importance, some are mere options, referring to bestpractice examples.
• A wide range of recommendations require changes in the law. In this respect, it is not in the hands of theCouncils to determine the roadmap, the timing and content of the changes. Nevertheless, also the Councilsshould be considered as addressees of such recommendations as they may play a more active role indeveloping policies in the justice sector and in putting forward policy recommendations to legislativebodies. The new law amendments and the actions taken by the Councils for their implementationsthat refer to the recommendations listed in the Catalogue are the subjects of brief comments in the lastcolumn of the updated version of the Catalogue
• Policy decisions need time, and the system needs time to ‘digest’ recommendations. In many cases, arecommendation may be implemented in different manners. The different options need to beclarified, weighed, discussed with different stakeholders, decisions need to be taken. This is a timeconsuming activity. We all know that in particular law amendments sometimes need years: they needcareful planning and a transparent and participatory involvement of all relevant stakeholders. TheProject activities implemented in the second (one year and a half) implementation phase were verymuch directed to the capacity building of both Councils in respect to policy analysis and policydecisions. Concept documents were elaborated by the Project and submitted to the Councils, such as aconcept document for training of Judges and Prosecutors, a concept document for the disciplinary systemfor judges and prosecutors, a concept document supporting the Draft law on the ODC, and so forth. Thus,the Project provided the Councils with new policy documents focused on developing the capacity ofjudicial bodies for policy decisions.
• The Project’s first implementation phase fell into the time of the establishment of a new structure of thecourt and prosecution system on the one hand, and the adoption of the new Criminal Procedure Code onthe other. These system changes were successfully implemented throughout 2011/12, and absorbed alot of resources of the Councils in the first period of implementation, involving also Project resources.The new challenge for the Councils is to analyze and assess the effectiveness and efficiency of the newstructure, and to take the respective measures for strengthening the new court and prosecution bodies.
• Some recommendations are very synthesized, meaning that they are presented in a very generalapproach leading to an assessment of the status of implementation as ‘P’, not showing any more that ahigh percentage was implemented and there are only minor aspects to be still addressed.
International Standards
For most recommendations, the Catalogue of Recommendations provides a reference to one or more documents containing or establishing an international standard.
Several bodies at European (mainly at the Council of Europe level) or international level (mainly at the UN level) have adopted recommendations, opinions or principles regarding the standards of the judiciary in a democratic society that are of an advisory, non-binding nature.
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These non-binding international standards seek to highlight the range of issues that should be considered regarding the administration of justice. When using these documents in the national context, the user may need to revisit provisions of the national constitution or other law, and assess existing rules, procedures and mechanisms of accountability. In doing so, it will, no doubt, take into consideration its capacity and resources, and its level of economic development; existing but different mechanisms that adequately address the same concerns; and, the fundamental principles of its own legal system. Finally, usually these documents are rather broad in scope and do not list an exhaustive range of measures that can be adopted in relation to the justice system; they are generally open to alternative approaches that may meet their spirit and requirements.
Furthermore, it needs to be highlighted that these international standards are evolving. While, for example, in Opinion 10/2007 of the CCJE it is stated that the Council for Judiciary can be either composed solely of judges, or have a mixed composition of judges and non-judges, and that the chair should be a judge, the Recommendation of the Committee of Ministers of the Council of Europe CM/Rec (2010) 12 requires that ‘not less than half of such members of (judicial) councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.’ The Venice Commission in 2011 in its Opinion No 626/2011, referring to the Law on Judicial Council of Montenegro, suggests a ‘composition with a parity of members coming from the judiciary and from the rest of the society’ in order to avoid ‘autocratic management of judges.’ It goes even further to propose that the chair of the Council ‘be elected by the Judicial Council from among the lay members in order to ensure the necessary links between the judiciary and the society, and to avoid the risk of an autocratic management of the judiciary.’ These examples show clearly that these international standards are always to be read and understood in their context and evolving nature. Kosovo’s institutions, therefore, will have to consider the facts and local circumstances and take tailored policy decisions. Where a policy decision takes into account divergent international standards, and - by referring to local specificities - is based on transparent and well-reasoned considerations, this will be acknowledged also by the local and international community.
The referred international standard might not be found and identified by the same wording, but the rationale behind the recommendation has the basis in the referred document. Some recommendations are very general and the referred international standard might be more specific and detailed, or vice versa.
Moreover, additional standards are to be found in these documents. As stated in the introduction, this Catalogue is a collection of recommendations put forward by the Project’s experts within their mandates in the course of the implementation of the Project activities, which always had limited scopes.
The international documents used as reference documents for the catalogue are listed below. The column ‘international standard’ in the Catalogue only refers to the number of the document as set out in this list. Most recommendations refer to several international documents. However, the references are not exhaustive. Other international documents are relevant.
The international documents listed below were translated into Albanian by the Project and included in a Reference book with international documents, submitted to the Councils and other relevant bodies and institutions in October 2014.
Furthermore, during the second implementation phase of the Project, additional international documents were collected and used by the experts. Most of the reports and comments elaborated within this period of time refer to these new international documents. The Project elaborated a new list of international documents (more than 70) regarding Project activities that were implemented and divided by areas, including references to respective web pages. The newly elaborated list of international documents (an annex to the Project Final Report) would be very useful for the Councils, and to international programs and programs involved in future activities aimed at developing and strengthening the Councils.
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List of referenced documents included in the Catalogue and in the Reference book, containing international standards:
1. European Convention on Human Rights, case law of the ECtHR
2. UN Basic Principles on the Independence of the Judiciary, 1985
3. European Charter on the statute of judges (1998)
4. Recommendation Rec (2000) 19, of the Committee of Ministers on the role of publicprosecution in the criminal justice system
5. Opinion No 1/2001 of the consultative Council of European Judges (CCJE) on Standardsconcerning the independence of the Judiciary and the irremovability of judges
6. Opinion no. 3/2002 of the Consultative Council of European Judges (CCJE) on the principles andrules governing judges’ professional conduct, in particular ethics, incompatible behaviour andimpartiality
7. Opinion no 4/2003 of consultative Council of European Judges (CCJE) on appropriate initial and in-service training for judges at national and European levels
8. European Commission for the Efficiency of Justice (CEPEJ) on Councils for the Judiciary in EU Countries,2003
9. Opinion No. 6/2004 of CCJE on fair trial within a reasonable time and judge’s role in trials takinginto account alternative means of dispute settlement
10. Opinion no 403/2006 of Venice Commission on Judicial Appointments
11. Opinion no 10/2007 of the Consultative Council of European Judges (CCJE) on the Council for theJudiciary at the service of society
12. Opinion No 626/2011 of the Venice Commission on the draft amendment to the Constitution ofMontenegro, as well as the draft amendment to the Law on courts, the Law on StateProsecutor’s Office and the Law on the Judicial Council
13. The Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and CentralAsia, 2010, OSCE and ODIHR
14. Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct, 2010
15. Recommendation CM/Rec (2010)12 on judges: independence, efficiency and responsibilities
16. CCJE 3/2010, MAGNA CARTA OF JUDGES (Fundamental Principles)
17. Opinion no 648 / 2011 of the Venice Commission on Legal Certainty and the Independence of theJudiciary in Bosnia and Hercegovina
18. Opinion No 668/2012 of Venice Commission On Hungarian Act on Prosecution Service and on Statusof Prosecutor General, Prosecutors and other Prosecution Employees and theProsecution Career
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19. European Network of Councils for the Judiciary on Minimum Standards regarding evaluation ofprofessional performance and irremovability of members of the judiciary, 2012 – 2013
20. Venice Commission Opinion no. 712/2013 on the draft Law on the High Judicial andProsecutorial Council of Bosnia and Herzegovina
21. Venice Commission and DHR no. 751/2013 Joint Opinion on the draft Law amending andsupplementing the Judicial Code (evaluation system for judges) of Armenia
22. Venice Commission Opinion no 755/2014 on the draft Law of the Republic of Moldova on theDisciplinary Liability of Judges
Conclusions
In total, 141 main recommendations were identified. More than two thirds of them are at least partially dependent on amendments to the Constitution or the justice laws. Though prioritization is a core task of the Council and other local stakeholders, some areas need to be considered of high priority from a Rule of Law and fundamental rights perspective.
Statistics:
The table includes 141 recommendations, which refer to the following areas:
14 12 13 3 Component I 5 6
• Appointment/Transfer/Promotion of Judges/Prosecutors 31
24 Component II and III
• Composition and Structure of the Councils• Competences of Councils and Procedural Safeguards• Training as task of the Councils• Evaluation of the Justice System• Budget Issues• Strategic Planning
• Evaluation of Judges and Prosecutors• Discipline of Judges and Prosecutors
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The assessment carried out in July 2014 is the following:
• Out of 141 included recommendations – beyond what was transposed by
regulations/plans/decisions/job descriptions –
6 were fully implemented
80 were partially implemented
55 were not implemented
whereby the implementation of 96 recommendations depends (partially) on law amendments.
• The new assessment based on the current status of implementation of the recommendations carriedout on February 2016 shows the following:
Out of 141 included recommendations:
9
23 are fully implemented
88 are partially implemented
40 are not implemented
The comparison of the level of implementation shows an increase in the number of recommendations that have been implemented in the last 18 months. Furthermore, the level of implementation of 101 recommendations must be considered as the same as it was considered in July 2014 (implemented, partially implemented or not implemented). The comments inserted in the last column of the table show that even if the level of implementation is the same, some improvements and developments have to be assessed positively. More than 50% of the recommendations that have the same status of implementation (101 in total) have to be considered as recommendations in process of implementation. The respective actions taken by the legislator, by the Councils or the Project are mentioned briefly in the comments of the status quo.
The other important conclusions based on the comparative analysis of the level of implementation of the recommendations in July 2014 and February 2016 can be made regarding the assessment by areas. The most significant positive achievements concern the implementation of recommendations for improvement of the organisation, functions, and structures of the Councils (under Component I), and the appointment system for judges and prosecutors. As far as Kosovo’s disciplinary system for judges and prosecutors goes, it is still not in compliance with international standards. Even the latest Law amendments pertaining to the subject, adopted on 28 May 2015, are critical. The newly adopted articles establishing statutes of limitations regarding disciplinary proceedings, and the new composition of the KPC’s Disciplinary Committee have not been well received. The first one addresses the lack of policy analysis prior to the adoption of the law amendments regarding pending disciplinary cases and the legal consequences from the implementation of the new provision to these cases. Thus, a lot of ongoing cases have to be dismissed based on this law provision. The new composition of the KPC’s Disciplinary Committee foreseen by the LKPC is not in compliance with the Constitution.
However, it is important to underline that statistics do not show the importance of the implementation or non-implementation of the Catalogue’s recommendations. Thus, the Councils have to pay attention to this assessment, and they should refer to the implementation of the respective recommendations when drafting the Annual reports and Annual Plans of the Councils.
From the Project’s perspective, the assessment of the implementation of the most of the recommendations is already included in the Project’s reports elaborated in the last few months and are analysed in the Final report.
Prioritization and follow up activities
As stated above the prioritization needs to be established by the Councils.
However, from a Rule of Law and fundamental rights perspective the following recommendations regarding legislative measures are considered a priority (highlighted in pink in the catalogue):
• Constitutional power for the Councils to adopt regulations and judicial review of regulations• Composition and structure of the Councils – the new Law amendments of the LKPC already provide a new
structure and composition of the KPC;• Legal remedies/appeal procedures against decisions of the Council – the law amendments adopted in 2015
did not address these recommendations;
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• Regarding the disciplinary liability system for judges and prosecutors, the final conclusion of theProject in this regard is that the disciplinary system for judges and prosecutors in Kosovo still needs a veryserious revision on a legislative level in order to ensure the compliance of the disciplinary system with therelevant international standards
• The appointment system is considered as another priority area with regard to sustainability. The major law amendments of the four Laws that took place in 2015 aimed at establishing a newappointment system for judges and prosecutors in Kosovo. The new challenges currently concern theinterpretation and implementation of the new law provisions, drafting and approval of new by-lawsand SOP by the Councils, adoption of a new Law on the KJA by the Assembly andharmonization of this Law with the LKJC, LC, LKPC and LSP, and so forth.
On an operational level the Project proposes the following to be dealt with priority (highlighted in green in the Catalogue):
• Capacity building of the Council/members of the Council/staff, including activities such as:o Training in legal drafting skills and development of policy options;o Drafting and approval of new By-laws following the Law amendments adopted on 28 May
2015;o Review, revision of the SOP in compliance with By-Laws Councils’ meetings -Definition of tasks
beyond attending meetings; preparation of meetings; preparation of topics of agendas bymembers
o Preparation of reports;o Supervision and guidance capacity towards staffo Elaboration of an accountability mechanism
• Career development tools and capacity, by activities:o Bylaws regarding transfer and promotion;o Harmonization of the By-laws which relate to career development;o Training monitoring and promotiono Evaluation coaching sessions
Drafted byAnita Mihailova
February 2016
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Catalogue of RecommendationsC
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Comments July 2014 Final Comments February 2016
I 1
Composition of the KJC/KPC
It is recommend that the KJC/KPC is composed of a majority of
judges/prosecutors elected by their peers, or, at least, not less than 50% of its
composition should be judges/prosecutors elected by their peers from all levels
of the judiciary and with respect for pluralism inside the judiciary.
x x x
Const
,
KJCL,
KPCL
3, 5,
10,
11,
13,
14,
15,
16,
17,
20,
22
P
Implemented: 5 out of 9 members of KPC are prosecutors. At least 9 out
of 13 members of KJC are judges. Judges and prosecutors are therefore a
majority in the respective Council.
Action Point: Article 108 (6) of the Constitution and Article 5 of KJC/KPC
Law may be considered to be amended. For both Councils not 50 % of the
members are elected by their peers.
Article 5 of the Law on the KJC was not amended in
regard with the composition aspect due to Constitutional
constraints.
Article 5 of the Law on KPC was amended in 2015 and the
recommendation was implemented for the KPC. (KPC
shall be composed of 13 members with a five year terms
and ten (10) members shall be elected from among
prosecutors).
I 2
Tasks and deputyship of chair of Councils
The tasks and responsibilities as well as deputyship of the chair of KJC/KPC should
be established by Law.
x x xKJCL,
KPCL
11,
22
N Action point: A revision of KJC/KPC Law is needed which foresees the
tasks and responsibilities as well as deputyship of the chair of KJC/KPC.
This recommendation was implemented for the KPC only
through the amendments of the Law on KPC in 2015 and
adoption of new Article 5/A.
I 3
Chair of KPC
The chair of KPC should be separated from the function as Chief State
Prosecutors and should be elected from among the prosecutors by the KPC.
The position as chair of KPC should be a full time position.
x x KPCL
10,
11,
13
NAction point: amendment of KPC Law, foreseeing that the chair is elected
by the Councils and the position of the chair of KPC as full time position is
needed.
This recommendation is fully implemented with the new
amendment in Art. 3 par.5 of the LA-LKPC (The
Chairperson of the Council shall suspend the position of
state prosecutor and shall be entitled to return to the
service as a prosecutor of the prosecution office in which
he/she had served before being elected as Chairperson of
the Council)
I 4
Minister of Justice as member of the Council
The Minister of Justice is ex officio member of KPC.
However, the power to discipline a prosecutor or the decisions regarding the
appointment/evaluation/transfer and promotion should be vested in an
authority or tribunal which is independent of legislature and executive, and
which is composed of serving or retired prosecutors but which may include in its
membership persons other than prosecutors, provided that such other persons
are not members of the legislature or the executive. According to international
standards the Minister of Justice should not be member of the Council. In case
the Minister of Justice is an ex officio member of the Council it should be at least
stated in the law that he/she shall not participate in sessions where the Council
decides on career development of prosecutors or in those relating to the
disciplinary liability.
x x KPCL
3, 5,
6, 10,
11,
13,
17
N Action point: A specific provision in the law should clarify the restricted
mandate of the Minister of Justice as member of the Council.
This recommendation is implemented : The Law
amendments in force on 15 July 2015 ( Art. 3 of the LA-
LKPC) removed the Minister of Justice from the
membership of the KPC.
Composition & Structure of Council
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Catalogue of RecommendationsC
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 5
Court Presidents/Chief Prosecutors as members of the Councils
It is recommended to stipulate explicitly by Law that Court Presidents/Chief
Prosecutors shall not be members of the Councils. In case a Court
President/Chief Prosecutor is elected member of a Council he/she should be
required to resign from such a position.
x x xKJCL;
KPCL13
NAction point: The laws would need to be revised.
This Recommendation is fully implemented (Art 3 par. 8
of the LA-LKJC provides: the Presidents of the Courts
cannot be members of the KJC). Art. 3.1.5 of LA-LKPC
provides that members of the KPC, except the Chief State
Prosecutor may not exercise at the same time the
function of Chief Prosecutor of any prosecution office.
i 6
Existence and competences of Committees
The existence and the tasks/competences of the Council's committees should
have a basis in the Law, foreseeing few permanent committees and leaving
flexibility to ad hoc committees.
Additionally it should be clearly stated that - besides the Disciplinary Committee -
no committee has decisive power; all committees have to provide the Councils
with a report and all documents providing full information on the procedure, the
collected documents and the reasons why a certain decision is recommended.
x x xKJCL,
KPCL
9, 11,
20,
22
P
Implemented: The Disciplinary Committees are established by law. Their
competence is described by law.
Action point: A revision of KJC/KPC Law is needed which establishes a
basis for the work of other permanent and ad hoc committees of the
Councils
This Recommendation is implemented through the
respective amendments of the LKJC and LKPC in 2015
with the establishment of permanent Council's
Committees.
I 7
Composition of Committees
Basic rules on the composition of the committees should be contained in the law.
The committees of the Councils should have sufficient members to allow a broad
discussion. Contemporaneously the number of members should be sufficiently
low in order to allow a smooth work. If representatives of other professions are
members of the committees, the number of judges/prosecutors should always
prevail.
Basic rules on the replacement in case of a conflict of interest or other cases of
prevention from the duties of a member of the Committees should be
established by law in compliance with the Law on Preventing Conflict of Interest
in Exercising Public Functions.
The law should explicitly require that the chair of the Council because of the
nature of the function should not be a member of the Committees.
x x xKJCL,
KPCL
11,
14,
17,
21,
22
N Action point: A revision of KJC/KPC Law is needed foreseeing the
requirements regarding the composition of the Councils' committees.
The requirements regarding the composition of Council's
committees are not introduced by the last law
amendments of the LKJC and LKPC adopted on 28 May,
2015. The amendments of the LKPC foresee a new
composition of the KPC's Disciplinary Committee, which is
the only one decision-making Council's Committee. Thus,
the amendments of the Law are not in compliance with
the Constitution
I 8
Tasks of Committee Members
KJC/KPC is recommended to ensure that the members of the Committees are
freed from other tasks, if necessary, as to be able to fulfill the core task as
committee member to elaborate draft decisions and deliberate properly on
them.
Particularly for the Disciplinary Committee it is recommended to foresee a
rotation principle and alternate rapporteurs as to share the work load.
x x xKJCL;
KPCL
11,
22
P
Implemented: In the regulations establishing the norms for judges and
prosecutors it is foreseen that tasks in these committees need to be
taken into account.
Action point: Clearer rules would be needed in order to ensure that
committee members may carry out their tasks in the committees and
particularly that the members of the Disciplinary Committee have the
time to draft the decisions and to prepare the deliberation session
properly.
No law amendments took place for this particular
recommendation. The Councils approved some
Regulations which contain provisions aiming at improving
the procedures and the tasks of the permanent
Committees.
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Catalogue of RecommendationsC
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of
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c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 9
Procedure in the Committees
Some basic rules on the procedure in the Committees should be established by
law, like the quorum, casting votes or other solutions in case of equal votes, etc.
x x xKJCL,
KPCL
9, 13,
21
NAction point: The KJC/KPC Law would need to be amended.
No amendment took place for this particular
recommendation, except that the LA-LKJC in Article 11
added the following paragraph at new Article 19A Par 5:
"Composition, mandate, criteria, method and other
issues related to the judges performance assessment is
regulated by this law and regulation adopted by the
Council". The newly adopted Art 14/B, LKPC contains an
identical provision.
I 10
Councils' co-operation with Court Presidents/Chief Prosecutors
The co-operation between the Councils and the Court Presidents/Chief
Prosecutors should be better defined and strengthened.
xKJCL,
KPCL
17,
BP
P
Implemented: KJC organizes yearly a Conference of President Judges and
Supervising Judges. KPC invites Chief Prosecutors to KPC meetings as
necessary and discusses their reports on their prosecution office with
them.
Action Point: The laws should explicitly define the co-operation of the
Councils with Court Presidents/Chief Prosecutors and the KJC/KPC by-law
should provide details of this co-operation.
No amendment of the Laws was made to reflect this
recommendation. However, the Project provides the KPC
and KJC with recommendations and proposals for the
improvement of this co-operation. (QPRs, 2015)
I 11
Establishment of an inter-council co-ordination and co-operation mechanism
It is recommended to establish a proper mechanism on a permanent basis to
improve the interaction between KJC/KPC, as to avoid isolation and ensure the
unified application of similar law provisions.
This mechanism could apply the following elements:
• a member of KJC/KPC as observer in meetings of the other Council
• mandatory regular meeting between heads of secretariat/departments at the
administrative level
• joint meetings where best practice examples, questions on the application of
the law and unified application of the law could be discussed
A basic provision on the inter council co-ordination would be needed in the law.
x x xKJCL;
KPCL
17,
20
P
Implemented: A Regulation was adopted which provides rules on
decision making in joint Councils meetings. The Councils meet regularly
for joint meetings. When adopting regulations the provisions of the
respective other Council is taken regularly into consideration. Joint
trainings during the pilot training and in future continuous training will
increase awareness of implementation practices within both Councils and
their Committees.
Action point: The KJC/KPC Law should be revised. Nonetheless the
implemented steps, it needs to be stated that there is room for further
improvement of the interaction between the Councils.
No amendment was made to reflect this particular
recommendation.
I 13
Separate Secretariat for KPC
KPC should have it's own secretariat dealing with internal administrative matters,
separate from the secretariat of the Chief State Prosecutor.
x x KPCL 11N
Action point: An amendment of KPC Law, foreseeing separate
secretariats for KPC and Chief State Prosecutor Office, including basic
structure and responsibilities is needed.
Article 10 of the LA-LKPC amended Art 14 of the basic Law
by establishing a separate Councils' Secretariat. Further
support is needed for the proper implementation of the
new law provision.
I 14
Separate organigram of KPC
KPC should have a separate organigram from the Chief State Prosecution Office,
reflecting the structure based on laws and sub-laws.
x 11 NAction point: KPC needs to elaborate an organigram that is separate from
the Chief State Prosecution Office.
The new Organigram of the newly established Secretariat
is in the process of elaboration. The Organigram should
be in compliance with the new regulation on the
Secretariat (still not approved by the KPC)
15
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
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Stat
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Im-
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me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 15
Publication of the organigrams of the Councils
The organigram should be published at the website, including the interaction
with courts/prosecution offices.
x x 13 NAction point: None of the Councils have published their organisation
charts.This recommendation is implemented by the KJC.
16
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
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of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 16
Constitutional empowerment to issue regulations
The Constitution foresees only regulations of the government. Also the power of
the Constitutional Court is restricted to the review of the constitutionality of
government's regulations. The Councils' power to issue regulations and the
power of the Constitutional Court to review such regulations regarding the
constitutionality and legality should be explicitly foreseen by constitutional
provisions.
x x x Const
RoL,
10,
11,
17
NAction point: A constitutional review would be needed. No Constitutional amendments were made.
I 17
Types of decisions of the Councils
In accordance with the Rule of Law Principle it is recommended to refer in the
law as well as in practice exactly to defined types of normative acts.
Regularly regulations are general legal provisions issued by administrative
authorities and directed at persons subject to the law. The general constitutional
empowerment in this case relates only to implementing regulations for the
purpose of specifying general legal provisions. Regulations which amend or
supplement the law are generally not allowed or would require express
constitutional empowerment. Decisions are regularly administrative instruments
to execute the law which are directed at one or more individually specified
persons. Instructions may be administrative regulations (general instructions or
circulars) or administrative decisions directed to one or more individually
specified persons.
An amendment to a regulation should also be called regulation and not decision,
etc.
x x x Law RoLN
Action point: The Law on Normative Acts was not yet adopted. In
practice the Councils do not use unified terms for the normative acts
adopted by them.
This Recommendation is not implemented. Both Councils
still need capacity building in drafting of by-laws and
other types of Councils' decisions.
I 18
Publication of decision of the Councils
The law should explicitly determine where decision of the Councils need to be
published.
It is recommended that the decision of the Councils - as a rule, if not otherwise
provided by law - should be published.
x x Law
RoL,
11,
13
P
Implemented: KJC publishes at it's website regulations, decisions,
instructions. Also KPC published it's legal acts on the website of the Chief
State Prosecution Office.
Action point: It is recommended to foresee search functions, to explicitly
show the date of publication, to publish consolidated versions at the
website in order to facilitate the tracking of published acts. KPC is
recommended to run a separate website from that of the Chief State
Prosecution Office.
No amendments of the Laws were made to reflect this
particular recommendation. Both Councils need support
for continuing the work of drafting rules on publication of
Councils' decisions
I 19
Entry into force of legal acts
The Rule of Law Principle requires legal acts to enter into force only upon
publication (legal acts with general effect) or upon receipt of the decision by the
addressee (decisions). The Councils are strongly recommended to refer in their
regulations and decisions to the date of publication as date when the respective
act enters into force and to state on the document explicitly when it was
published.
x x x LawRoL,
11
P
Implemented: Sometimes the Councils refer to the date of
publication/receipt as date of entry into force.
Action point: The entry into force should be clarified in a general manner
by law and the Councils should refer to the date of publication/receipt as
date of entry into force.
No amendment was made to reflect this particular
recommendation. A uniform practice needs to be
established by the Councils.
17
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 20
Councils' task in policy development
The law should explicitly entitle the Councils to be involved in the law making
process by delivering policy recommendations and comments to draft laws in the
justice system.
The Councils are recommended to be more active in the area of policy
development in the justice sector.
x x xKJCL,
KPCL
11,
17
P
Implemented: The Councils recently have taken a more active role in the
policy decision making in the justice sector.
Action point: A revision of KJC/KPC Law is needed foreseeing the right of
the Councils to be involved in law making processes regarding justice
laws.
Both Council have increased their capacity in policy
decisions and elaboration of Concept documents
supported by the Project. The Councils were provided
with Project documents containing policy analyses and
policy options. Trainings were delivered by the Project in
2015
I 21
Power of Councils regarding (re)appointment, transfer and promotion,
evaluation and discipline
All decision regarding (re)appointment, transfer and promotion as well as
evaluation and discipline shall be taken by the Councils.
x x x
KJCL;
KPCL;
KJIL/J
AL
3, 5,
11,
10,
13,
14,
20
P
Implemented: The laws - generally - assign the power to propose
candidates for (re)appointment, transfer and promotion to the Councils.
Also evaluation and disciplinary liability falls into the competence of the
Councils.
Action point: Regarding the competence in the area of appointment
(admitting the candidates to the initial training) the laws need to be
amended.
With the entry into force of the amended Laws on the KJC
and KPC, Law on Courts and Law on state Prosecutor on
15 July 2015, and with the enactment of the KPC
Regulation on the Recruitment, Exam, Appointment and
Reappointment of State Prosecutors in December 2015,
the Recommendation is fully satisfied with regard to the
KPC and also to the KJC as its draft Regulation on the
same matter will have to respect the new Law provisions.
II &
III22
Transparency of process of appointment, transfer, promotion, evaluation and
disciplinary liability
In order to guarantee that the system for the recruitment, selection and
appointment, transfer and promotion, evaluation and discipline of
judges/prosecutors is independent, fair, open and transparent, the body must
publish the competences against which it determines whether any particular
candidate has sufficient merit and all sources of information that it will use for
the assessment.
x x xKJCL,
KPCL
3, 5,
9, 10,
11,
13,
14,
20,
21
P
Implemented: Both Councils have published the Regulation on the
Process of Recruitment, Appointment and Reappointment as well as such
on the Evaluation, which include all indicators and sources of information
which are used in the appointment/evaluation process.
The KJC/KPC law contain the definition of the misconduct.
Action point: A basic requirement regarding the transparency should be
established by law, sources of information should be at least
demonstratively listed in the law and more detailed rules for the transfer
and promotion process need to be established by laws. The definitions
on the misconducts are not sufficiently clear.
No amendment was made to reflect this particular
recommendation with the entry into force of the
amended Laws on the KJC and KPC in July 2015.
However, with the enactment of the KPC Regulation on
the Recruitment, Exam, Appointment and
Reappointment of State Prosecutors in December 2015
the Recommendation is satisfied with regard to the KPC
listing the requirements for the selection and
appointment as indicated by Art. 18 of the LKPC in
combination with Artt. 8, 9, 14, 17, 18, 21, and 22 of the
KPC mentioned Regulation. With regard to the KJC draft
Regulation on the same matter, Artt. 7, 8, 13, 14, 15, 17,
18, 19, 22, and 23 of the present draft appear to be
sufficient to satisfy the requirement.
18
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II &
III23
Confidentiality of the deliberation in decisions regarding appointment, transfer,
promotion, evaluation and disciplinary procedure
Adequate procedures should be in place to guarantee the confidentiality of the
deliberations regarding appointment, transfer, promotion, evaluation and
disciplinary liability. It is recommended that records and information obtained
and maintained during the process shall be confidential and shall not be
disclosed. The identity of the individuals who provided information concerning
judges/prosecutors shall be confidential and shall not be disclosed. However, the
concerned judge/prosecutor should have access to all information included in
the file.
x x xKJCL,
KPCL
9, 10,
21
P
Implemented: Both Regulations on the Process of Recruitment and (Re)-
Appointment as well as those on Evaluation and Disciplinary Procedures
contain rules on the confidentiality of the respective process. KPC's
Regulation exempts the evaluated prosecutor.
Action point: A basic requirement regarding the confidentiality should be
established by law and more detailed rules for the confidentiality of the
transfer and promotion process need to be established by by-laws. The
exception of the evaluated prosecutor is not foreseen in the KPC
Regulation on Evaluation.
No amendment was made to reflect this particular
recommendation with the entry into force of the
amended Laws on the KJC and KPC in July 2015.
However, with the enactment of the KPC Regulation on
the Recruitment, Exam, Appointment and Reappointment
of State Prosecutors on 1 December 2015 the Regulation
reiterates the need for insuring and requests the highest
confidentiality of the recruitment process according to
Artt. 5.7, 7.3, 11, 14 of the KPC mentioned Regulation.
With regard to the KJC the draft Regulation on the same
matter, Artt. 6, 12, 19, 28, and 30 of the present draft are
of the same tenure and the KJC draft appears to offer
more guarantees than the KPC one.
II &
III24
Documentation of the appointment, transfer and promotion, evaluation and
disciplinary procedure
It is recommended to create sufficient record in relation to each applicant to
ensure that there is a verifiably independent, open, fair and transparent process
and to guarantee the effectiveness of the independent complaints or challenge
process to which any unsuccessful applicant is entitled if he or she believes that
s/he was unfairly treated in the appointment/transfer/
promotion/evaluation/disciplinary process. Any information used during the
process has to be documented in the respective files.
x x xKJCL,
KPCL
9, 10,
11,
21
P
Implemented: Both Regulations on the Process of Recruitment and (Re)-
Appointment contain rules on the record keeping of all steps in the
appointment process. Furthermore new templates are used which assist
in keeping these records. Also the Regulations on Evaluation and
Disciplinary Procedures contain respective requirements.
Action point: A basic requirement regarding the documentation should
be established by law.
No amendment was made to reflect this particular
recommendation with the entry into force of the
amended Laws on the KJC and KPC in July 2015.
However, with the enactment of the KPC Regulation on
the Recruitment, Exam, Appointment and Reappointment
of State Prosecutors in December 2015 the
Recommendation is satisfied based on the content of
Artt. 8.8, 16, and 27of the KPC mentioned Regulation.
With regard to the KJC draft Regulation on the same
matter, Artt. 7.6, 17, 18, 27, and 30 of the present draft
are of the same tenure and the KJC draft appears to
satisfy the Recommendation.
II &
III25
Confidentiality policy for keeping case files/archives
The Councils are recommended to revise the confidentiality policy regarding the
appointment, evaluation and disciplinary process in order to ensure that all
documents filed in regard to each candidate are accessible to all members of the
competent Committees and KJC/KPC, including admitted supporting staff, and at
the same time no other person has access to the files.
Furthermore, the Councils are recommended to ensure that the files are deleted
after an established period of time which should be separately defined for
appointment, evaluation and discipline and should be in accordance with the Law
on Data Protection.
x x BP P
Implemented: Both Councils have established a practice in regard to
confidentiality for keeping of case files and the archives.
Action point: A comprehensive policy seems still needed to be adopted
and implemented.
No action has been taken to fully implement this
recommendation. However, the KJC has started a
procedure for drafting rules for case files keeping and
archiving. Further support in this direction is still needed.
19
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 26
Access of public and media to information & Public Relations
The external communication and public relations should be increased, notably
the level of public awareness of laws, rights and mechanisms available to enforce
rights should be enhanced.
Minutes of Councils' meetings should be published taking into account data
protection rules.
An establishment of a Public Relations Committee and/or the designation of a
trained spokes person is recommended.
The elaboration of guidelines regarding disclosure of information is
recommended in order to enhance active and comprehensive communication
between the Councils and the public.
Specific training, well coordinated with the training institution, on public relation
issues is needed for Council members, spokespersons and supporting staff.
x x xKJCL,
KPCL
6, 9,
11,
13,
14,
15,
20
N
Action point: A policy on access of public and media to Councils' and
court's/prosecution's information needs to be elaborated and legal
framework established. A public relation strategy should also be part of
the Strategic Plan.
The KJC has adopted its Communication Strategy and
Regulation on the Office of Communication/ Coordination
of the KJC,while the KPC is in the process of adoption of
the Communication Strategy and the Regulation. The
Project provided both Councils with analyses and
recommendations in this regard in 2015.
I 27
Human resource planning and strategy
Proper attention should be paid to the process of planning of the human
resources needs.
In particular the following factors shall be considered:
1) clear rules/gathering of information on retirement and other cases of end of
mandates
2) a long-term policy on the opening of new judges'/prosecutor’s positions.
This would also have the effect of better planning of training needs, especially on
a long term.
x x BPP
Implemented: Both Councils have gathered the relevant data as to
overview the retirement of judges and prosecutors.
Action point: An improved human resource planning and strategy is
needed.
Both Councils have their Draft Human Resource
Strategies. However, additional support is needed for
improvement of the draft strategies, analysis and
consideration of all relevant factors, adoption and
implementation of the HR Strategies.
20
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 28
Establishment of a co-ordination and co-operation mechanism between the
Councils and the training institution
Mechanism for co-ordination and co-operation with KJI regarding training needs
analysis, co-ordination regarding the selection of trainers, the training curricula
and the evaluation of trainings need to be further developed.
The members of the Councils should be represented in the KJI Board.
KJI should have a central role in training of judges and prosecutors and
supporting staff. Article 40(2) of KPC Law might need to be changed as to avoid
the duplication of training institutions.
It is recommended to establish a Committee or any other adequate structure
dealing with all issues of training of judges, prosecutors and supporting staff and
the co-ordination with the training institution.
A Training Committee could have the following tasks:
• ensuring liaison with the training institution
• establishing criteria for the selection of mentoring judges/prosecutors
• guiding and supervising mentoring judges and prosecutors
• ensuring quality management of mentorships
• ensuring training needs analysis in co-ordination with KJI
• review of training curricula
• preparing the approval of requests for the authorisation of trainings and
recommending to the Councils a respective decision
• general criteria for training attendance
• overviewing training registry
• elaboration of templates and standard operational procedures.
x x xKJCL,
KPCL
11,
14
P
Implemented: KJI Law establishes that the KPC/KJC is represented in the
Board. Within the Councils training units are established. However their
capacity needs to be enhanced.
Action points: Clearer provisions regarding the respective competences
of the Councils and the training institution are needed in the 4 justice
laws and in the law governing the functioning of the training institution.
The co-ordination and co-operation between the Councils and the
training institution should be enhanced and standard operational
procedures developed. The Councils might consider to establish a
Training Committee with specific tasks.
The members of the Councils in KJI Board should in fact represent the
Councils and should be bound to the Council's policies and decisions. It
should be considered not to delegate the president/chair of the Councils
to the Board (as foreseen now in KJI Law) but a 'specialized' member of
the respective Council (for examample the chair of a future Training
Committee).
No amendment was made to reflect this
recommendation. The Project elaborated comments on
the Draft KJA Law in 2015. Further support is needed in
improvement of the final version of the LKJA and
harmonization of this Law with the last law amendments
of the LKJC, LKPC, LC, LSP.
Training as Task of the Councils
21
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II &
III29
Role of the Councils regarding initial training
The law should make clear the role of the Councils in determining the basic frame
for initial training and the training policy. KJC/KPC should play a leading role in
determining the frame for initial training and in the training needs assessment.
The government's responsibility for judicial training should be restricted to the
provision of adequate resources to ensure that appropriate judicial training can
be provided.
x x x
KJCL,
KPCL,
KJIL/J
AL
11,
13,
14
P
Implemented: Article 40 KPC Law and Article 50 KJC Law already foresee
that the Councils shall determine policies, standards and directives by
which the training of judges/prosecutors are regulated. Both Councils
have put forward a policy recommendation in order to clarify the role of
the Councils, to introduce a provision regarding the basic frame for initial
training . The proposed approach would foresee theoretical and practical
aspects during the initial training.
Action point: Articles 17/18 KJC/KPC Law and 26 Law on Courts and
Article 19 SP Law as well as KJI Law need to be revised. Based on law
amendments also the Regulations need to be reviewed.
The law amendments of the LKJC and LKPC adopted on 28
May 2015 provide a 12-month mandatory Initial training.
The Project delivered to the Council a Concept document
on the training of judges and prosecutors in 2015 aimed
at determining the policies and standards for initial and
contentious training. Further support is needed for
development of the policies and standards in accordance
with the law amendments and the new law on the KJA.
II &
III30
Content of initial training
Initial training should comprise both theoretical and practical aspects and cover
all fields of law relevant to working at a court/prosecution office, whilst providing
other skills and knowledge relevant to the judicial/prosecutorial activity (such as
ethics, case management, administration of courts, information technologies,
foreign languages, social sciences, social awareness, alternative dispute
resolution and extensive understanding of different subjects reflecting the
complexity of life in society). This should be stated in the law.
x x x
KJCL,
KPCL,
KJIL/J
AL
6, 11,
13,
14
P
Implemented: Both Councils have put forward a policy recommendation
to determine the content of the initial training.
Action point: KJC/KPC Law and KJI Law need to be revised. Based on law
amendments also the Regulations need to be reviewed.
The law amendments of the LKJC and LKPC introduced in
2015 foresee a 12-month Initial training. However, the
content of initial training needs to be clarified by the
training institution. The draft Law on Kosovo Judicial
Academy (LKJA) is still not approved by the Assembly.
Harmonization of the law amendments of the LKJC, LKPC
and the new LKJA is recommended.
22
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II &
III31
Designation of trainers/specialists in the area of
appointment/evaluation/discipline
KJC/KPC are recommended to designate among the judges/prosecutors with
experience as chair/member of an Appointment/Evaluation/Disciplinary
Committee and possibly also as trainer as ‘recruitment/evaluation/ disciplinary
specialist’. The tasks of the ‘specialist’ could be the following:
• Deliver training in the initial training program or support a respective trainer of
KJI in the respective area
• Deliver training every time needed for new members of
Appointment/Reconsideration/Evaluation/Disciplinary Committees
• Ensures that relevant materials, Manuals, templates, forms, etc. are updated
constantly
• Ensures that the KPC/KJC is informed on upcoming questions and the KPC/KJC
is provided with the relevant information to take necessary decisions
• Ensure that experience and findings regarding needs of amendments to are
brought to the attention of the Councils.
• Attend trainings on training methods and techniques
The Councils are recommended that all questions related to
appointment/evaluation/discipline are regularly brought to the attention of this
specialist
x x11,
21
P
Implemented: The Councils have designated trainers/specialists for
almost all areas. Those have participated actively in the pilot training and
have been indicated to KJI as possible trainers.
Action point: KJC still needs to designate specialists/trainers in the area
of appointment and evaluation. The specialists/trainers still need to be
considered and 'used'.
This recommendation is partially implemented. Both
Council still need to use adequately the capacity of the
members of the Councils, supporting staff, judges and
prosecutors, trained by the Project and other
international programs and specialied in the area of
appointment, evaluation and discipline.
23
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
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dar
d/o
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II.
&
III.
32
“Building Best Practice”
It is recommended that
a) a designated member of the respective Committee takes notes of problematic
issue raised during meetings and procedures (regarding the
interpretation/application of the laws/by laws or on how to assess certain
documents/situations/facts, or on delimitation between ethics and disciplinary
relevant behaviour, etc.)
b) specifically for evaluation: Court Presidents/Chief Prosecutors take notes of
issues arising in the context of evaluations or performance coaching
c) workshops are held of members of the respective Committee (and in regard to
evaluation with the Court Presidents/Chief Prosecutors; additionally for all areas
eventually jointly with members of other Council, experts, etc.) on an annual
basis in order to discuss these issues
d) Crucial questions might be brought to the attention of the Councils and
guidance might be requested
e) the conclusions/findings should be written down in a continuously updated
'General Guideline/Manual'
f) the General Guidelines/Manual should be made public and accessible to all
judges/prosecutors and (partially) to the public
x x
9, 11,
13,
21
P
Implemented: The ratio behind this recommendation was explained
during the pilot training.
Action point: The recommendation will need to be implemented.
The implementation of this recommendation depends on
the development of the Councils and improvement of the
performance of the respective Councils' Committees. The
recommendation is not implemented.
II &
III33
Course on appointment/evaluation/disciplinary liability within initial training
It is recommended to
• introduce in the curricula of the initial training program in the frame of
instructions on the judicial organization training on rules and practices on
appointment, performance evaluation and disciplinary issues.
• to select those as trainers who were indicated by the Councils as trainers for
the pilot training organized by the project.
Main content of the initial training curriculum should refer to
• International standards and principles regarding
appointment/evaluation/disciplinary liability
• main procedural and material aspects of the Kosovo legal framework relating to
the three areas
x x6, 11,
13P
Implemented: KJI has accepted the recommendation and is in process of
adopting respective curricula.
Action point: The curricula need to be adopted and implemented.
No changes have occured for the implementation of this
recommendation
24
Catalogue of RecommendationsC
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Recommendation KJC
KP
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lega
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II &
III34
Continuous training on appointment/evaluation/discipline
KJI in co-operation with KJC/KPC is recommended to
• deliver a tailored training every time a
Appointment/Reconsideration/Evaluation/ Disciplinary Committees is newly
appointed and/or a new Council is elected.
• give a face to face short training to new members appointed or elected in case
of termination of the assignment of individual members
• in case of evaluation, include in all trainings also the Presidents of Courts/ Chief
Prosecutors and eventually deliver specific training to Court's Presidents/Chief
Prosecutors
• deliver a training programme for all judges/prosecutors on a regular basis and
particularly each time relevant changes in the legal framework for evaluation and
disciplinary liability is introduced
• use the training material provided and suggested by the Project and
continuously update the training material.
x x6, 13,
21P
Implemented: KJI and both Councils have accepted the recommendation
and plan to provide the training.
Action point: The training will have to be provided every time needed.
This recommendation is not implemented. After entering
into force of the new Law on the KJA a coordination
mechanism between the KJC/KPC and KJA in regard to
the contentious training needs to be adopted.
II &
III35
Capacity Building for Legal Secretaries and supporting staff
The Councils are recommended to boost the capacity building of the staff in
order to prepare the officers to deliver a more responsible, professional, efficient
assistance to the functioning of the Councils. Particular attention should be paid
to the capacity building of the Legal Secretaries of the Committees and the heads
of units/offices of the Secretariat/PPRU, in order to empower him/her to be able
to assist the Committees more efficiently:
• in establishing a proper documentation of all decisions, including indexing,
• in all actions related to file keeping and communication with the parties,
• in ensuring unified application of the law,
• in enhancing the legal research capacity.
x x9, 13,
14P
Implemented: The Legal Secretaries and supporting staff participated in
the pilot trainings and were more actively involved in the elaboration of
the standard operational procedures.
Action point: Legal Secretaries to the Committees and other supporting
staff need further capacity building.
This recommendation is implemented partially. The
Project delivered additional trainings in 2015. However,
the Law amendments in 2015, the new Regulations and
the amendments of some of the Regulations in force,
require the respective amendments of the training
programs and delivering of training based on the TNA.
25
Catalogue of RecommendationsC
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
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lega
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Inte
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II &
III36
Joint training of Committee Members and staff
The staff of the Councils shall support the Committees and the Council efficiently.
For this reason it is appropriate to convene to the staff members’ knowledge of
the recruitment/evaluation/disciplinary system and a full understanding of their
role in the broad context of the process. Staff needs to have a vision of the
finality and the use of the documents they have to be aware of the purpose and
structure of the reports to be established. This would facilitate developing a team
spirit and reciprocal understanding. For this reason, identified officers should be
part of the target group of the continuous training also in the future.
x x 9, 14 P
Implemented: The pilot training was carried out partially jointly.
Action point: Also in future the training should be (partially) carried out
jointly.
The Project has delivered joint trainings in 2015 following
this recommendations. Further implementation is
needed.
II &
III37
Right and obligation to attend continuous training
The law should make clear that every judge/prosecutor, of whatever rank, needs
to keep up-to-date with developments and therefore training should be made
available to all judges/prosecutors, and all judges/prosecutors should be
required to receive continuing judicial training.
The attendance to the training should be taken into account in the evaluation.
x x x
LC,
SP
Law
3, 4,
11,
14,
16
NAction point: The laws should include a right and obligation to attend
trainings.
No amendments of the Laws took place for this
recommendation. However, the Regulations on
evaluation of the performance provide assessment of the
participations in the trainings.
II &
III38
Continuous training promotion and monitoring
Continuous training at all levels of the judiciary/prosecution system should be
promoted and the culture of continuing training should be disseminated among
members of the judiciary/prosecution system, making available to
judges/prosecutors the financial resources, the time and other means necessary
for continuous training. A system should be put in place that allows the Councils
to monitor the training activities of each judge/prosecutor and ensures that the
training is attended by those who really need it.
x x11,
14P
Implemented: KPC/KJC have established training offices where all
training activities for prosecutors/judges are coordinated.
Action point: A mechanism of continuous training needs assessment on
one hand and on approval of training attendance based on real needs
still to be established.
After the establishment of a Training Office within the
PPRU, no further steps have been taken for the
coordination of training activities.
26
Catalogue of RecommendationsC
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Re
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Recommendation KJC
KP
C
OD
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Mo
J/A
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lega
l act
Inte
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
39
Purpose of evaluation of the justice system
The purpose of the evaluation of the judicial/prosecution system as such should
be established by law. The purpose of evaluation of the justice system could refer
to the following:
a) to build up the trust and confidence of the public into the system
b) improving the performance of the justice system
c) increasing the quality and quantity of the system
d) establishing consistent “bench marks” for the quality and quantity of system
e) informing KJC/KPC decisions in relation to human resources, training needs
and career development
f) informing KJC/KPC decisions in relation to budget issues
g) monitoring the performance in order to allow long hand planning and
management
x x xKJCL,
KPCL
9, 10,
11,
21
N Action point: The KJC/KPC Law will need to be revised.
A mechanism for the evaluation of the judicial and
prosecutorial system is not in place. No provisions are
introduced in the amended laws on KJC, LC, KPC and SP.
I 40
Data collection and quality control in justice system
It is recommended that statistical data are collected by courts/prosecution
offices and sent to the Councils. Statistical data should be processed
electronically. The data collected should refer to each court/prosecution office,
and additionally to individual judges/prosecutors.
The publication of statistical data concerning pending and past cases in each
court/prosecution office is recommended in order to enhance transparency of
the situation of workloads. Appropriate forms should be studied for the release
of even reserved information to researchers and to the judiciary, in order to
allow monitor the improvements of the system.
The Councils should perform a constant monitoring process. This monitoring
should help to identify shortcomings and needs regarding the organisation of the
courts/prosecution offices or allocation of human and material resources.
Smooth co-operation should take place among all actors as to the interpretation
and dissemination of data.
The law should contain a general rule on the power of the Councils to collect the
data and to ensure quality control.
x x xKJCL,
KPCL9, 13 P
Implemented: Both Councils collect data from Courts/Prosecution Offices
and data relating to the cases assigned to the single judges/prosecutors.
Since midst/end of 2013 the data are processed electronically and
contain relevant information regarding all courts/prosecution offices as
well as the individual judges/prosecutors. The electronic system of data
collection in KPC was adapted to the new Criminal Procedure Code.
Action point: KJC/KPC Law should be amended in order to ensure a
proper basis for the task of the Councils to collect and process data. A
comprehensive quality control mechanism should be implemented and
the data collection mechanism continuously improved.
The Law on the KPS provides legal base for gathering of
statistic data: art. 4 1.13. foresees providing and
publishing information and statistical data on the
prosecution system. No quality control mechanism is in
place.
Evaluation of the Justice System
27
Catalogue of RecommendationsC
om
po
ne
nt
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
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us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
41
Evaluation of the justice/prosecutorial system
The quality of justice should be measured by objective data, such as the
conditions of access to the justice and the way in which the public is received
within the courts/prosecution, the ease with which available procedures are
implemented and the timeframes in which cases are determined and decisions
are enforced.
Additionally, a more subjective appreciation of the value of the decisions given
and the way these decisions are perceived by the general public should be
assessed.
It should take into account information of a more political nature, such as the
portion of the State budget allocated to justice and the way in which the
independence of the judiciary/prosecution system is perceived by other branches
of the government.
The evaluation should take into account the even wider context, i.e. in the
interactions of justice with other variables (judges and lawyers, justice and police,
case law and legislation, etc.), as most malfunctions of the justice system derive
from lack of coordination between several actors.
Furthermore the interaction between the quality of justice and the presence of
adequate infra-structures and support personnel should be considered. "Quality"
of justice should not be understood as a synonym for mere "productivity" of the
judicial/prosecutorial system; a qualitative approach should address rather the
ability of the system to match the demand of justice in conformity with the
general goals of the legal system, of which speed of procedures is only one
element.
x x 9, 11 P
Implemented: Both Councils carry out an evaluation of the work of the
councils on an annual basis and report on it in the Annual Report. In
March 2014 the PPRU has elaborated a very detailed and analytical
report regarding the implementation of the Action Plan on Increasing the
Effectiveness of the Prosecutorial System to fight against organized crime
and corruption.
Action points: So far comprehensive reports on the judicial/prosecutorial
systems were not elaborated.
The analytical part of the reports elaborated by the KJC,
CPRU, KPC, PPRU, Secretariats is improved in the last
period of time. The reports still need to be more
comprehensive and better structured. The conclusions,
recommendations and proposals of the reports have to
reflect accordingly the policy, decisions and plans of the
Councils
28
Catalogue of RecommendationsC
om
po
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nt
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
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mb
ly
con
cern
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lega
l act
Inte
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al
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dar
d/o
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 42
Role of the Councils in budget governance
Without prejudice to existing responsibilities of the government for proposing
the judicial budget and of parliament for adopting the budget, it would be
advisable for the Councils to present to the government the budgetary needs of
the justice system in order to facilitate informed decision making. The Councils
should also be heard by the parliament in the deliberations on the budget. The
Councils may play a role also in the distribution of the budget within the
judiciary/prosecution system.
It is recommended to consider a delegation of the power to administer the
budget of ODC to ODC Secretariat and to review the approved internal financial
delegations of the KJC/KPC as a Budget Organisation.
x x xKJCL;
KPCL
11,
13
P
Implemented: KJC/KPC Law empower the Councils to prepare the annual
operating budget of the Council and the courts/prosecution offices. If the
Minister of Finance and Economy submits a budget from that proposed
by the Council, he/she has also to submit the Councils' proposal.
Action point: The Councils should also have the right to be heard by the
parliament. This would need to be stated by law. A delegation of power
to administer the budget should be considered.
LA-LKJC, Art. 5 amends Art 6 par 3 of the basic Law with
the following provisions: 'Proposes to the Kosovo
Assembly the Council’s proposed budget for the
operational and personnel expenses of the Council and
the courts"; Also Art 9 of the LA-LKJC amends Art 15 par
1 of the Basic Law with the following provision: 'The
Council shall prepare its annual budget proposal and
forward the said budget proposal to the Assembly of the
Republic of Kosovo for adoption. This recommendation
partially solves the situation.'
I 43
Support to the Annual Budget Planning Process
It is recommended to improve the internally circulated budget regulations and
internal timetable to the Courts/Prosecution Offices, Departments and Units on
which the Finance Director relies for detailed budget information and which is
then consolidated into the KJC/KPC budget by the KJC Secretariat respectively
administration of KPC.
Moreover the standard operating procedures regarding specific aspects of the
documentation required as part of the budget setting process, for example -
setting goals, objectives and performance indicators should be developed.
x x 11 NAction point: Review of internal budget related rules and timetables,
training to support specific aspects of documentation
The Project has delivered a Manual and ensured four
Workshops in 2015 aiming at improving the budgeting of
judiciary and capacity building of the persons in charge
with the budgeting in the Councils, Courts and
Prosecution offices. Further steps for the proper
implementation of the Manual have to be done by the
Councils.
I 44
Reporting & Monitoring
It is recommended to establish a mechanism to ensure constant budget
monitoring and to increase the capacity for quarterly and annual financial
reporting. The content of the presentation of the budget as well as the process of
the presentation of financial reports to the KJC/KPC Budget & Finance Committee
should be improved. It is recommended to increase the awareness and
importance of audit report content, material issues arising for Board Level review
and appropriate action and follow up based on audit findings (KJC/KPC report
from Office of Auditor General and Internal Auditors Report)
x x 11 NAction point: In year quarterly and annual financial reporting and
monitoring of the KJC/KPC budget
The Manual elaborated by the Project and submitted t
the KJC and KPC in 2015 contains clear proposals for
financial reporting and monitoring of the implementation
of the budget.
Budget Issues
29
Catalogue of RecommendationsC
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Re
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Recommendation KJC
KP
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lega
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Inte
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 45
Financial Management Capacity Building of KJC/KPC & Secretariat to Increase
Transparency and Accountability
It is recommended to increase the awareness and understanding of KJC/KPC
members and members of the KJC/KPC Budget & Finance Committee regarding
their responsibilities and accountabilities for the setting, approval and
monitoring and oversight of the KJC/KPC budget. The Budget & Finance
Committees need to improve the forward planning of KJC/KPC standing agenda
items with specific focus on the timetables for the annual budget setting process,
mid year revision of the budget, presentation of outturn figures and
consideration & response to the findings of internal and external audit reports.
x x 11 NAction Point: Further capacity building for KJC's/KPC's member/Budget &
Finance Committee member is needed.
The training materials of the Workshops organised by the
Project in 2015 for the KJC's /KPC's members and
members of their Budget Committees are submitted to
the Councils for organisation of trainings when needed.
I 46
Support for Heads of Unit / Non Financial Managers who have budget
responsibilities in KJC/KPC and to Finance Officers
It is recommended to ensure capacity building for non financial managers in
support of that part of the role which is expected to provide financial input to the
budget planning, execution and monitoring process. Furthermore capacity
building is needed for finance officers in courts/prosecution offices with regard
to their role.
x x 11 NAction point: Training in budget for non financial managers and finance
officers in the courts/prosecution offices.
The training materials of the Workshops organised by the
Project in 2015 for the staff members in charge with the
budgeting are submitted to the Councils for organisation
of trainings when needed.
30
Catalogue of RecommendationsC
om
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
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lega
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Inte
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 47
Structure and Content of the Strategic Plan
The following key challenges should be contained in the Strategic Plan:
• Institutional Overview and Development
• Legal Framework and Reform
• Human Resource Development
• Infrastructure and Information Technology
• Access to Justice
Furthermore the following issues should be addressed:
• Vision and Strategic Direction of KJC/KPC, including values (people, fairness,
independence, integrity, professionalism, respect, credibility),
• mission and strategic goals (strengthening the legal framework, strengthening
the institutional aspects, enhancing the human resource capacity, developing the
necessary infrastructure, increase the access to justice, transparency and
communication),
• assumptions and risks,
• indicators (in order to measure the progress in the implementation of the
strategic plan)
x x BP Y
Implemented: A draft Strategic Plan was elaborated by both Councils.
Action point: The draft Strategic Plans are in process of being adopted by
the Councils.
The KJC approved a five year Strategic Plan and Action
Plan for the implementation of the Strategic Plan in 2014.
The KPC approved a three year Strategic Plan, elaborated
with the support of the Project, on 12.02.2016
I 48
Action Plan for the Implementation of the Strategic Plan
Any Strategic Plan needs to include an Action Plan for the implementation of the
KJC/KPC Strategic Plan with clear timing, budget and responsible persons to
implement it.
x x BP Y
Implemented: KJC has already elaborated an Action Plan.
Action point: KJC is in process of adopting the Strategic Plan together
with the Action Plan. KPC still needs to elaborate an Action Plan for the
Implementation of the Strategic Plan and to adopt it.
This recommendation is implemented by the KJC. The
Project elaborated a draft KPC's Action Plan.
I 49
Capacity Building and Establishment of a Strategic Planning Office
It is evident that actual capacities in the field of policy and planning development
are limited. It is strongly recommended to ensure capacity building in the sector
of strategic planning and management.
There is no structure within the KJC/KPC with clear responsibilities for
coordination, planning and policy research. Therefore, the KJC/KPC management
should consider the establishment of the Strategic Planning Office within KJC/KPC
or at least to designate officers for such activity.
x x BP N
Action point: A structure within KJC/KPS with strategic planning
responsibilities needs to be established and a clarification is needed of
the respective responsibilities for the co-ordination, planning and policy
development.
The KJC has implemented this recommendation. The KPC
has accepted the recommendation. However, the newly
created Council is still in the process of deciding on the
Secretariat and its units.
I 50
Establishment of a Monitoring Working Group
It is recommended to establish a Working Group or a Committee for the
monitoring of the implementation of the KJC/KPC Strategic Plan.
x x BP NAction point: A structure within KJC/KPC with strategic planning
monitoring functions needs still to be established.
The persons appointed in the KJC's Secretariat have the
responsibilities for the regular monitoring of the
implementation of the Strategic Plan.
Strategic Planning
31
Catalogue of RecommendationsC
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
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lega
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Inte
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 51
Functional Review
During the implementation and after the implementation of the KJC/KPC
Strategic Plan it is recommended to conduct a functional review of the
functionality of the new court/prosecution structure, the entire
judicial/prosecutorial system as well as of the organisation and the functioning of
KJC/KPC.
x x BP NAction point: The Strategic Plan first of all needs to be implemented and
reviews carried out.
The review and assessment of the functionality of the
new Court/ Prosecution structure is an on-going process.
Both Council have to initiate and carry out a
comprehensive analysis and to take measures for the
development of the new structure accordingly.
I 52
Strategic Planning (Organisational) and Financial Planning
It is recommended to provide support to the Director of Finance & Budget (or
nominated KJC/KPC Strategic Planning Lead) in developing the financial sections
of the KJC Strategic Plan 2014-2019 and KPC Strategic Plan 2014-2016 – this could
include:
• Strategic- level scenario planning to identify and anticipate significant medium
term KJC/KPC operational developments such as the impact of capital schemes or
re-organisation. Facilitate the outline costing of these for the medium term.
• Support to draft the high level financial components of the Strategic Plan
including the link to KJC/KPC strategic goals, objectives, activities and measurable
outcomes
• From the identification of significant medium term issues, arising from the
Strategic Planning process and the KJC’s/KPC's Declaration of Priorities 2014-
2016, look at ways of more clearly linking this to the annual budget planning
exercises for each fiscal year.
x x BP N Action point: review of the financial section of the Strategic Plan
The KJC's Strategic Plan and Action Plan is approved. The
Financial section of the Strategic Plan is reviewed and
elaborated accordingly. The KPC's Strategic Plan
approved on 12 February 2015 is in compliance with the
last law amendments and Project documents elaborated
for supporting the budgeting of the system in 2015
(planning, reporting, level of decentralisation, etc.)
32
Catalogue of RecommendationsC
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
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cern
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lega
l act
Inte
rnat
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dar
d/o
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
53
Power of Councils regarding (re)appointment, transfer and promotion
All decision regarding (re)appointment, transfer and promotion shall be taken by
the Councils.
x x x
KJCL;
KPCL;
KJIL/J
AL
3, 5,
10,
11,
13,
16,
17,
20
P
Implemented: The laws - generally - assign the power to propose
candidates for (re)appointment, transfer and promotion to the Councils.
Action point: The competence to admit the candidates to the initial -
mandatory - training will need to be clearly assigned to the Councils. The
law amendments are still under way.
The Recommendation is implemented - The LKJC and
LKPC were amended accordingly: Art 4.1.19, LKJC
provides that the KJC “in cooperation with the Institute,
organizes the preparatory examination for the
qualification of judge candidates ), and adds new
paragraphs vesting the competence of the appointment
process to the KJC in Art 4. 1.28: “issuing of regulation on
determining the terms and procedures for organizing the
exam for candidates for judges"; par. 1.29: "announcing
and organizing the exam for judges ). LKPC is amended in
the same direction -Art.4.1.2.8, Art.4.1.31. LKPC.
II
&
III
54
No competence of KJC to establish appointment criteria by a regulation
Article 26(1) Law on Courts seems to allow KJC to establish criteria by a
regulation. This seems to conflict with the constitution which requires criteria to
be established by law and also with international standards.
x x LC
5, 13,
15,
20
P
Implemented: KJC has put forward a policy recommendation to
introduce a provision regarding the repeal of this provision.
Action point: Article 26 Law on Courts need to be revised.
The Recommendation is satisfied. Art. 26 of the LC is
amended in 2015 and the criteria for appointment are
listed by the Law.
III 55
Special criteria and procedure for the appointment of Chief State Prosecutor
The Chief State Prosecutor is central to the independence of the prosecutorial
service, because all prosecutors are accountable to him/her, so that he/she can
(at least in theory) influence prosecutorial decisions taken by all his/her
subordinates.
It might be advisable to open this position to non-acting prosecutors, however by
establishing by law clear and transparent criteria and an appropriate fair and
open procedure which ensure appointments without undue political influence. It
is recommended to give priority to acting prosecutors with high professional
performance and to foresee for non-acting prosecutors at least the same period
of professional experience in the criminal justice sector and a proven track record
in managerial functions.
x x SPL
2, 9,
10,
11,
13,
14
P
Implemented: KPC has put forward a policy recommendation in order to
open the position as Chief State Prosecutors to non-acting prosecutors.
Action point: Clearer procedural rules for the process of appointment of
the Chief State Prosecutor should be contained in the law. The revision of
the law is still under way.
According to the amendments in the LA-LSP, there are no
specific criteria for the appointment of the CSP. Only in
one provision LA-LSP sets a criteria for the appointment
conditions of CSP (Art. 8 amending Art 20 of the basic
Law.) who is required to have 8 years experience. Other
than that, both LA-LSP and LA-LKPC do not contain any
provisions where the recommendation is implemented.
Appointment, Transfer & Promotion
33
Catalogue of RecommendationsC
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
56
Power of the President regarding (re)appointments
If the competence to appoint judges/prosecutors remains with the President of
the Republic, the law should clearly state that KJC’s/KPC's proposal of candidates
for appointment is binding.
x x x
Const
,
KJCL,
KPCL
3, 5,
10,
11,
13
P
Implemented: The Constitutional Court clearly stated that the power of
the President is limited.
Action point: The Constitution and KJC/KPC Law should clearly state that
the power of the President is limited.
No amendment was made to reflect this
recommendation.
II
&
III
57
Harmonisation of the minimum qualifications for judges and prosecutors
The Law on Courts and the SP Law establish minimum qualification requirements
which are different for judges and for prosecutors. It is recommended to
harmonize them.
x x xCL,
SPL11
P
Implemented: Both Councils have put forward a policy recommendation
to introduce a provision regarding the harmonisation of the minimum
qualification.
Action point: Article 26 Law on Courts and Article 19 SP Law need to be
revised.
The law provisions were amended in 2015. Through these
amendments, the minimum qualifications are
harmonized for both judges and prosecutors.
II
&
III
58
Criteria for (re)appointment
It is recommended to structure the criteria for being (re)appointed as judges and
prosecutors as established by Article 17 KJC Law and Article 18 KPC Law and to
enhance the clarity.
It is recommended to include the criterion of 'high professional reputation and
moral integrity' In KJC/KPC Law and to clarify the content of 'personal integrity'
and 'moral integrity'.
x x xKJCL,
LPCL
2, 3,
4, 5,
10,
11,
13,
14,
15,
16
P
Implemented: Both Councils have put forward a policy recommendation
to introduce a provision regarding the restructuring of the criteria and in
order to clarify the terms.
Action point: Article 17/18 of KJC/KPC Law and Article 26 of Law on
Courts and Article 19 of SP Law need to be revised.
The criteria 'high professional reputation' and ' personal
integrity' are foreseen in the amendments of the LC and
LSP in force on 15 July 2015. Art. 26, LC and Art.19 LSP are
amended accordingly.
34
Catalogue of RecommendationsC
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
59
Special criteria for reappointment
The criteria for re-appointment are the same as those for appointment. This is
acceptable. However, the basis for re-appointment should be mainly the
evaluation of the performance of judges/prosecutors during the initial term. In
case of mandatory initial training after appointment, the results of the exams
during the initial training and the evaluation during the initial training, including
the in-field training phase should be taken into account. A minimum scoring in
the exams and the evaluations for being re-appointed should be established by
law/regulation.
At the end of the initial term the judge/prosecutor should have the right to
receive a written and reasoned decision on whether or not he/she is
reappointed.
x x x
KJCL,
KPCL,
KJIL/J
AL
3, 4,
5, 10,
11,
13
P
Implemented: The criteria for reappointment are foreseen by law. The
Councils have put forward a policy recommendation to base the decision
on re-appointment on the evaluation, including the results of the exams
during the initial training and the evaluation during the initial term.
Action point: The process of law amendments is under way.
The recommendation is implemented through the law
amendments in 2015 - two evaluations are foreseen after
the initial appointment: first one after 12 month initial
training and the second one at the end of the 3 year
initial appointment as a precondition for a proposal for
permanent appointment.
II
&
III
60
Background checks
It is recommended to establish clearly by law the scope of background checks,
the access of candidates to all documents collected during the vetting, the right
of being heard and the possibility of a judicial review. The background check
should respect the privacy and dignity of the candidates and refer to the criminal
record and any other disqualifying ground from the police, anti-corruption, tax
administration, financial intelligence unit and disciplinary authorities.
x x xKJCL,
KPCL
2, 3,
13,
15
P
Implemented: Both Councils have put forward a policy recommendation
to introduce a provision regarding background checks.
Action point: KJC/KPC Law need to be revised.
No amendment was made to reflect this
recommendation. The Project has recommended to
abide by the OSCE Kiev Recommendations on Judicial
Independence in Eastern Europe, South Caucasus and
Central Asia of 2010.
II
&
III
61
Definition of 'legal' experience
Article 26 Law on Courts defines legal experience as including experience as
prosecutor, judge, lawyer or academic. SP Law does not contain any definitions.
It is recommended to refer only to professional experience after the graduation
at a law faculty and to widen the definition in Law on Courts (including for
example legal associates or legal officers at courts/prosecution offices) and
include a harmonized definition also in SP Law.
x x xCL,
SPL
3, 10,
11,
13,
14.
15
P
Implemented: Both Councils have put forward a policy recommendation
to introduce a provision regarding the definition of legal experience.
Action point: Article 26 Law on Courts and Article 19 of the SP Law need
to be revised.
The law amendments of Art. 26 par.2 and Art.19 LSP
define "legal experience" :“For the purpose of this
Article, experience in the legal field shall include
experience on legal matters in national and international
institutions and organizations, experience as a notary and
as a private enforcement agent”. The recommendation is
implemented.
II
&
III
62
Sources of information for appointment
It is recommended to use a wide range of sources of information and list the
sources of information, which the Councils will use during the recruitment and
appointment procedure demonstratively by law.
x x xKJCL;
KPCL
5, 10,
11,
13,
14,
15
P
Implemented: Both Councils have put forward a policy recommendation
to list sources of information.
Action point: KJC/KPC Law need to be revised.
The amendments of the LKJC, LKPC, LC, and LSP did not
foresee any further specification regarding the sources of
information for appointment. Thus, the KPC has defined
the sources of information in the newly adopted
Regulations on Recruitment, Exam and Appointment
(issued on 1st December 2015)
35
Catalogue of RecommendationsC
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
63
Mandatory initial training
It is recommended to foresee mandatory initial training for all candidates for
being appointed as judges/prosecutors, eventually with different length and
content for candidates with relevant previous professional experience.
x x xCL,
SPL
3, 4,
9, 11,
13,
14
PImplemented: Both Councils have put forward a policy recommendation
to introduce a provision regarding mandatory training for all candidates.
Action point: The laws need to be revised.
The recommendation is implemented: The law
amendments adopted in 2015 provide 12 months of
mandatory initial training
II
&
III
64
Competence to determine the number of candidates and admission to the initial
training course
The human resource planning should include long term information on the
number of office holders who shall enter into the system at least for the period
of the Councils' mandate. The competence of the Councils to determine the
number of judges and prosecutors who shall be admitted to the initial training
should be established by law.
The criteria for the admission to the initial training should be established by law
and should be based on a competitive, written and anonymous exam and other
sources of information, like results during previous exams and evaluations, and
should be carried out by KJC/KPC.
The admission to the initial training should give a high guarantee to the trainees
to be finally appointed as judges/prosecutors.
The juries of any written and oral exam should be composed of
judges/prosecutors and other persons of recognized merit in the areas or
subjects under evaluation.
x x x
KJCL,
KPCL,
KJIL/J
AL
10,
11P
Implemented: Both Councils have put forward a policy recommendation
to introduce a provision regarding the harmonisation of the
requirements regarding initial training and the system approach which
allows the Councils to decide on the admission to the exam. The
proposed approach would give a high guarantee to be finally selected as
judges and prosecutors.
Already now it is in the hands of the Councils to determine the number of
judges/prosecutors that shall be accepted for initial training. In case of a
law amendment in the sense of the Councils' policy recommendation this
concern will be better met.
Action point: Articles 17/18 KJC/KPC Law and 26 Law on Courts and
Article 19 SP Law as well as KJI Law need to be revised. Based on law
amendments also the Regulations need to be reviewed.
The Law amendments entered into force in July 2015
regarding the system for recruitment, selection and
appointment of candidates is the legal ground for
elaboration a policy by the Councils and establishing a
planning process for the new judges and prosecutors
which have to be appointed in the next few years.
Further support to the Councils in this regard is still
needed.
II
&
III
65
Evaluation/exams during the initial training
Whenever initial judicial training is considered a prerequisite of judicial selection
and appointment, the progress in developing the skills and knowledge necessary
to fulfil the various duties as a judge/prosecutor should be evaluated by the body
in charge of providing the training either on a regular basis during the period of
training or by means of an examination at the end of the training period. The
results of the exams and evaluations should be taken into account in the
selection and (re-)appointment procedure.
x x xKJCL,
KPCL
5, 10,
11
P
Implemented: Taking into account the fact that in the Constitution
foresees an initial term and based on the policy option to foresee
mandatory initial training after the appointment for the initial term both
Councils have put forward a policy recommendation which would ensure
that the reappointment decision is taken on the basis of the results of the
exams during the training period and the evaluation in the initial term.
Action point: Article 17/18 KJC/KPC Law as well as the by-law would need
to be revised.
Art. 9 of the LA-LC provides an amendment of Art 27
par.3 p.7 of the Basic Law and states: "Appointed Judges
will be evaluated following the results of the initial
training in accordance with the relevant provisions of this
law..." Same amendment takes place in LA-LSP where
Art.8 amends Art.20 of the Basic Law. The
recommendation is implemented.
36
Catalogue of RecommendationsC
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
66
Mentoring phase during the initial training
The mentoring phase is an essential phase in the preparation for the office as
judge/prosecutor and should be under the supervision of the Councils. Currently
the mentoring phase during the initial training lasts 6 months. It is recommended
to extend this period to at least 1 year.
In this phase the responsibility given to the candidate should be step by step
increasing, so that, in the last period of this phase, they can carry out several
judicial/prosecutorial acts and tasks on their own (including presiding hearings),
even though still under the mentor judge’s/prosecutor's supervision, who finally
has to sign and approve.
x x xKJCL,
KPCL9, 11 P
Implemented: Both Councils have put forward a policy recommendation
which would assign full responsibility for mentoring judges/prosecutors
to the Councils.
Action point: Article 17/18 KJC/KPC Law as well as the by-law would need
to be revised.
No amendment of Art.17/18, LKJC/LKPC took place for
this recommendation. As far as the mentoring phase is
included in the initial training and the initial training is in
the competences of a judicial training body, the new Law
on KJA (still a draft) might provide the respective
provisions. A Coordination of the KJC, KPC and KJA in this
regard needs to be foreseen by the LKJA
II
&
III
67
Selection and supervision of mentors
Mentor judges/prosecutors should be carefully selected. The creation of a special
statute/by-laws for mentor judges could be considered (eventually involving
higher remuneration, at least however less regular court service as to ensure
sufficient resources to supervise candidates, etc.), in order to ensure the best
judges/prosecutors will be interested to act as mentors.
x x xKJCL,
KPCL9 P
Implemented: Both Councils have put forward a policy recommendation
in order to allow a legal basis for the selection and supervision of
mentoring judges/prosecutors.
Action point: KJC/KPC Law and the sub-law need to be revised/adopted.
No amendment was made to reflect this
recommendation. As far as the mentoring phase is
included in the initial training and the initial training is in
the competences of a judicial training body, the new Law
on KJA (still a draft)might provide the respective
provisions. A coordination mechanism has to be provided
by the Law.
37
Catalogue of RecommendationsC
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KP
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
68
Disciplinary liability during the initial training phase
Candidates should be disciplinary liable for their conduct during their initial
training, in case they are appointed for an initial term prior to the initial training.
Non appropriate conduct (non-attendance of courses, non appropriate
communication and other non appropriate behaviour of the trainees) should be
a matter to be investigated by ODC and to lead to serious sanctions as provided
by law.
x x xKJCL;
KPCLBP Y
Implemented: Once appointed for the initial term the appointees are
disciplinary liable.This recommendation is implemented
II
&
III
69
Consultation with court/prosecution office before (re)-appointment
It is recommended to restrict the requirements to seek the opinion of the
respective court/prosecution office before submitting a nomination for
appointment and reappointment to the President to cases of reappointment.
x x x
Const
,
KJCL,
KPCL
11,
13N
Action point: the respective provision in Article 104(3) of the
Constitution, Article 17(3) KJC Law, Article 18(3) KPC Law should be
repealed.
The Amended LKJC, LKPC, LC, and LSP did not foresee any
further specification in July 2015. Recommendation 69 is
partially satisfied. Art. 31 of the KJC's draft Regulation
and Art. 32 of the KPC's Regulation (issued on 1
December 2015)do not limit the conditions and
requirements to seek the opinion of the respective
judicial and prosecution office, but just mention that the
opinion should be reasoned in case it contains a negative
assessment of the candidate. The opinion has a
consultative character
II
&
III
70
No appointment to a position
The appointment of a judge/prosecutor should be an appointment as
judge/prosecutor without specification of the court/prosecution office where
he/she will work.
That specification should occur in a second moment by a decision of the KJC/KPC.
As a consequence, transfers and promotions do not constitute any appointment,
but a movement/advancement in the career.
x x 3, 9 P
Implemented: In the Regulations on the Process of Appointment does
not contain any such reference any more.
Action Point: KJC/KPC need to implement this in practice.
Whereas the Amended LKJC, LKPC, LC, and LSP did not
foresee any further specification in July 2015, Art. 33 of
the KJC's draft Regulation and Art. 34 of the KPC's
Regulation foresee the appointment as judge and
prosecutor, whereas Art. 32 of the KJC draft Regulation
and Art. 33 of the KPC Regulation foresee the allocation
to a specific position under the authority of the
respective Councils.
38
Catalogue of RecommendationsC
om
po
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nt
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
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Inte
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
71
First post assignment as judge/prosecutor
It would be desirable that the courts/prosecution offices in which younger
judges/prosecutors are assigned in the first years of their job (courts/prosecution
offices with less workload/less specialization to allow a gradual consolidation of
judicial/prosecutorial skills) are selected carefully.
Taking into account the ranking of candidates in the appointment assessment as
judge/prosecutor by KJC/KPC, the first assignment to a specific court
/prosecution office should be done in the order of their ranking.
KJC/KPC should announce the seats available and all judges/prosecutors
competing should apply to the courts/prosecution office they wish to be assigned
to.
x x 9 PImplemented: The new Regulations allow this approach.
Action point: KJC/KPC need to implement this in practice.
Whereas the Amended LKJC, LKPC, LC, and LSP did not
foresee any further specification in July 2015, Art. 32 of
the KJC draft Regulation and Art. 33 of the KPC Regulation
foresee the allocation to a specific position under the
authority of the respective Councils. The preference of
the candidates and the allocation procedures should be
better specified and defined.
II
&
III
72
Appointment for an initial term
An appointment for an initial term is questionable with regard to the
independence. However, this should not be interpreted as excluding all
possibilities for establishing temporary judges/prosecutors. In countries with
relatively new judicial systems there might be a practical need to first ascertain
whether a judge is really able to carry out his or her functions effectively before
permanent appointment. If probationary appointments are considered
indispensable, a 'refusal' to confirm the judge/prosecutor in office should be
made according to objective criteria and with the same procedural safeguards as
apply where a judge/prosecutor is to be removed from office. Thus, the
judges/prosecutors who shall not be re-appointed shall have the right to get
issued a written and reasoned decision and to challenge the decision at a court of
law.
x x x
Const
,
KJCL,
KPCL
2, 3,
5, 9,
10,
11,
14,
15,
18
P
Implemented: The Constitution foresees the appointment for an initial
term. The Councils have put forward policy recommendations which shall
ensure that the reappointment is based on the results of the exams
during the initial training and all the evaluations during the initial term.
Only objective criteria will be the basis for re-appointment. An appeal
procedure is proposed to be introduced.
Action point: on a longer term a revision of the Constitution should be
considered. Based on the current system a judicial review against a
written and reasoned decision not to re-appoint should be introduced.
The last law amendments of the relevant Laws approved
in 2015 don't foresee an appeal of the decisions of the
Councils regarding the proposals for reappointment
before an independent Court. However, the Law
amendments provide two evaluations of the
performance of judges and prosecutors during the initial
appointment and the results of the evaluations have to
be taken into consideration by the Councils when
deciding on the proposals for re-appointment.
39
Catalogue of RecommendationsC
om
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
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lega
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Inte
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n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
73
Appeal against a decision regarding the proposal for (re)appointment and
promotion
An unsuccessful candidate should be entitled receive a written and reasoned
decision. That implies the need for an independent complaints’ or review process
which any unsuccessful applicant may use if he or she believes that s/he was
unfairly treated in any stage of the appointments’ process.
The Supreme Court is considered an appropriate body for reviews of the
decisions of the Council. It could be restricted to questions on law and could
foresee strict time limits both for the applicant and for the Supreme Court (for
example 2 weeks). The Councils should be bound to the decision of the Supreme
Court and submit a proposal for (re)appointment to the President which are in
compliance with the decision of the Supreme Court.
x x xKJCL,
KPCL
3, 4,
5, 9,
11,
10,
20
P
Implemented: Both Councils have foreseen in their regulations the
obligation of the Appointment and Reconsideration Committee and the
Councils to notify the candidates in written, including justifications. The
regulations foresee a reconsideration process.
Action point: Legal remedies need to be introduced by law.
The last law amendments of the relevant Laws approved
in 2015 don't foresee an appeal of the decisions of the
Councils regarding the proposals for (re) appointment.
Thus, the re-consideration procedure before the Re-
consideration Committee established by the Council is
foreseen by the KPC's Regulations and KJC's draft
Regulation. However, the recommendation has to be
considered still as partially implemented.
II
&
III
74
Forms and templates relating to the process of (re)appointment
It is recommended to (re-)elaborate forms and templates which are used during
the (re)appointment process and which should be published at the website of
the Councils.
x x 9 P
Implemented: Forms and templates have been elaborated.
Action point: The Manual, containing the forms and templates still needs
to be published.
The Project elaborated new SOP and updated some of
the previous SOP in order to adapt them to the new law
amendments and the new KPC's Regulation on
Recruitment, Exam and Appointment of Prosecutors
issued on 1 December 2015. The respective training was
delivered in January 2015. The KJC is not yet active in this
sense, since the relevant Regulation is still being drafted.
II
&
III
75
Regularly no appointment to higher positions
It is recommended that the higher and more demanding positions are primarily
assigned through promotion and transfer of acting judges/prosecutors.
x x 3 P
Implemented: in the more recent recruitment and appointment
processes the Council's opened the vacancy announcement only for
positions at the Basic Courts/Prosecution Offices.
Action point: The law should explicitly require appointment to higher
positions based on evaluation.
No amendment was made to reflect this
recommendation.
40
Catalogue of RecommendationsC
om
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nt
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
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lega
l act
Inte
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n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
76
Criteria and procedure for transfer
The criteria for transfer should be clearly established by law and the main
procedural safeguards determined by law. The law should clearly state that
judges/prosecutors shall not be transferred against their will. Exceptions might
be foreseen in the following cases: as consequence of disciplinary measures; in
case of abolition of his/her place, determined by objective and transparent
criteria. Only a structural (contrary to transitory) need of improvement of the
access to justice (e.g. consistent and permanent increase of caseload) or changes
in the administrative and territorial division should be considered as ground for
the creation/abolishment of seats.
The law should establish the right of the judge/prosecutor whose seat is
abolished, to choose the court/prosecution office to which he/she would like to
be transferred.
Any decision on a transfer should be in written und reasoned.
x x xKJCL,
KPCL
3, 4,
9, 11P
Implemented: The principle that there should not be a transfer against
the will of the office holder is contained in the law.
Action point: The exceptions from the principle to prohibit transfers
against the will of the office holder ('extraordinary circumstances' or
'insufficient judges/prosecutors') currently set out in Article 20 KJC Law
and Article 22 KPC Law seem too vague. Clearer criteria need to be
established by law. Furthermore, decisions on transfer should be in
written and contain a proper reasoning. These procedural aspects need
to be established by law too.
No Law amendment was made to reflect this
recommendation. However, the Project provides
comments and recommendations to the KJC for the
improvement of the KJC's Regulation on transfer of
judges. The Projects' experts provided the KPC with a
Concept document for transfer and promotion of
prosecutors and Draft Regulation in compliance with
European standards. The Regulation is still not adopted
by the Council
II
&
III
77
Regular transfer needs analysis
The needs for transfers should be assessed by KJC/KPC on a regular basis, but not
too frequently in order to avoid that this will constitute a factor of instability (for
example only every 5 years), and its results – including the number of
judges/prosecutors needed in each court/prosecution office and branch – should
be made public.
x x xKJCL;
KPCL9 P
Implemented: Article 20 KJC Law/22 KPC Law prohibits the transfer
against the will of the judge/prosecutor.
Action point: A clear provision on when the abolition/creation of new
positions in a court/prosecution office should be included in the law.
No Law amendment was made to reflect this
recommendation. See comments above on R.76
II
&
III
78
Criteria for the approval of an application for transfer
The transfer of a judge/prosecutors should be based on the results of the
evaluation in order to ensure a competition and career advancement incentives
to better performing post holders. In case of equal scoring in the evaluation,
preference should be given to the applicants of underrepresented
minorities/gender and then with more experience as a judge/prosecutor
(seniority);
x x xKJCL;
KPCL
3, 4,
9N Action point: No criteria for transfer are established yet by law.
No Law amendment was made to reflect this
recommendation. However the KPC's Draft Regulation on
Transfer and Promotion of Prosecutors elaborated by the
Project and the KPC's Working Group provides the
transfer to be based on the results of the evaluation of
the performance of prosecutors.
41
Catalogue of RecommendationsC
om
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Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
79
Principle of immovability
It is recommended to develop a concept as to ensure the principle of
immovability. The current system is not reflecting the principle of immovability
sufficiently (transfer for six months upon approval of the president judge/chief
prosecutor in cases of lack of judges/prosecutors) respectively seems not to allow
sufficient flexibility (transfer for 30 days in extraordinary circumstances).
x x xKJCL,
KPCL
3, 5,
9, 11N
Action point: A concept as to ensure the principle of immovability and
gives sufficient flexibility will still need to be developed.
The recommendation is not implemented. Both Councils
have to find a balance between the implementation of
the principle of immovability and the transfer of
judges/prosecutors. A concept document is
recommended.
II
&
III
80
Appeal against decision on transfer
There should be a possibility of an appeal (for example to the Supreme Court)
against all decisions regarding transfer of judges/prosecutors.
Even regarding temporary transfers the right to appeal to a court of law
(Supreme Court) should be foreseen, eventually restricted to questions on law in
order to allow obtaining compensation for damages and losses caused by an
unlawful decision.
An appeal should not have suspensive effect. As counterbalance, it should be
possible to request the interim measures of an immediate suspension of the
effects of a KJC's/KPC's decision in case of an evident unlawfulness or where the
immediate enforcement would cause substantial damages to the person affected
(summaria cognitio).
x x xKJCL.
KPCL
3, 9,
11N
Implemented: KJC Law already foresees an appeal in cases of transfer of
six months or on a permanent basis.
Action point: This recommendation would need as first step a law
amendment. The appeal against transfer decisions of judges should not
be restricted. Appeal rights and procedures need to be established by law
and not by a regulation, thus Article 22(6) KPC Law should be deleted.
No Law amendment was made to reflect this
recommendation.
42
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
81
Basis for decision on promotion
The criteria for promotion should be clearly established by law and the main
procedural safeguards determined by law. It should be considered to base the
decision on the promotion on a minimum period of professional experience and
on periodical evaluation of the professional performance, in order to ensure
competition and career advancement incentives to better performing post
holders. In case of a promotion to a managerial post (president judge or chief
prosecutor), management training and management skills should be explicitly
required as criterion for being promoted.
Secondarily promotion could be based on seniority.
x x x
KJCL,
KPCL,
LC,
SPL
2, 3,
4, 5,
9, 14
P
Implemented: The Law on Courts and the SP Law foresee a minimum of
professional experience for hierarchically higher courts/prosecution
offices. KJC/KPC Law establish the same criteria for evaluation and for
promotion. KJC has elaborated a Regulation on the Process of Promotion
of Judges.
Action point: The legal basis should be revised in order to establish a
clearer basis for promotion. KPC still needs to adopt a respective
Regulation.
No Law amendment was made to reflect this
recommendation. The Project drafted a Regulation on
Transfer and Promotion on Prosecutors that reflects as
much as possible this recommendation. The KPC still
needs to adopt the Draft Regulation.
II
&
III
82
Organisation of transfer and promotion
It should be considered to schedule periodical movements of judges/prosecutors,
in order to ensure that, every judge/prosecutor has an opportunity to ask for
transfer or promotion for a vacant position (before the announcement of the
movement, KJC/KPC should assess which seats must be filled in and make that
information public to all the judges/prosecutors). This would allow to
concentrate all the transfers/promotions in the same period, thus to minimize
the costs of the process.
x x BP NAction point: KJC/KPC still need to establish a concept for dealing with
transfers and promotions.
The Project provides both Councils with Concept
documents, analyses and reports in 2015 with regard to
the transfer and promotion. Further steps have to be
taken by the Councils and their Committees. The Concept
documents have to be approved by the Councils and the
policy decisions to be implemented accordingly.
II
&
III
83
No demotion
Once promoted to a superior category, a judge/prosecutor should not in any case
- except if foreseen as disciplinary sanction - be demoted to an inferior category,
even if his/her seat is abolished.
x x xKJCL,
KPCL3 N Action point: KJC/KPC Law need to be clarified in this point.
No Law amendment was made to reflect this
recommendation.
43
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
84
Evaluation as task of the Councils
It needs to be ensured that the Councils have the power to set up the necessary
tools to evaluate the justice/prosecution system and that the evaluation of
judges/prosecutors to be performed by the Councils, is fulfilled in an
independent manner. The evaluation of the system should be clearly
distinguished from the evaluation of the single judge/prosecutor, though some
sources of information (like statistics) may be the same.
In regard to KPC's PPRU the tasks should be clarified and the PPRU should carry
out only evaluations regarding the system and not regarding single prosecutors.
x x xKJCL;
KPCL
6, 9,
11,
13,
20,
21
Y
Implemented: Both Councils have the power for the evaluation of judges
and prosecutors and the justice/prosecutorial system. In KPC the tasks of
the PPRU has been clarified and carries out only the evaluations for the
system and not for prosecutors.
The newly adopted amendments of the LKJC ( Article
19/A) and Law on the KPC (Article 14/B) provide the
establishment of permanent Council's Committees on
Evaluation of the Performance of Judges/Prosecutors and
their compositions and competences. Thus, a clear
distinction of the bodies and competences regarding the
evaluation of individual performance of
judges/prosecutors and judicial/prosecutorial bodies is
provided by the Law.
II
&
III
85
Purpose of evaluation
The purpose of the evaluation of single judges/prosecutors should be
established by law. The purpose of evaluation of single judges/prosecutors could
refer to the following:
• To assist in the on-going process of improving the skills and capacity of
judges/prosecutors
• To encourage better quality and quantity of work of judges/prosecutors
• To establish a consistent “bench marks” for the quality and quantity of work to
be performed by judges/prosecutors across Kosovo
• To inform KJC/KPC decisions in relation to reappointment
• To inform KJC/KPC decisions in relation to promotion and transfer
• To inform KJC's/KPC's planning of training and other methods of professional
career development
• To facilitate the identification of judges/prosecutors who may have particular
skills.
x x xKJCL,
KPCL
11,
21N Action point: The KJC/KPC Law will need to be revised.
No Law amendment was made to reflect this
recommendation. However, the Law and Regulation
system grant a good level of efficacy of the Prosecutors
performance evaluation system. In the future criteria and
indicators should be revised, improved and applied
properly. The Project elaborated a Concept documents
and final assessment reports and delivered capacity
building trainings in 2016 for the KJC, KPC , Evaluation
Committees and the supporting staff where the purpose
of evaluation was clarified and discussed.
II
&
III
86
Criteria for the evaluation of judges/prosecutors
The evaluation of judges and prosecutors should be based on objective and
published criteria and should not only consist of an examination of the legal
expertise and the general professional abilities of judges/prosecutors, but also of
more personal information, such as their personal qualities and communication
skills. All judges/prosecutors should be subject to evaluation. The Councils should
play a fundamental role in the identification of the general assessment criteria.
The criteria set out in the laws are recommended to be more logically structured
and compliance between the Laws and the Regulations needs to be ensured.
x x xKJCL,
KPCL
11,
15,
19,
20,
21
P
Implemented: The criteria for the evaluation of judges and prosecutors
are contained in the KJC/KPC Law. Both Councils have adopted a
Regulation on the Evaluation of Judges/Prosecutors, which foresee the
evaluation of legal expertise, professional abilities and also personal
qualities.
Action point: The criteria for evaluation are the same as those for
appointment foreseen in the law. They should be revised in order to
structure them more logically. The criteria in the law should be linked
with consistent indicators in the Regulation.
The Law Amendments adopted in 2015 did not include
any provisions that contain revision of the criteria for
evaluation. In the future, criteria and indicators should be
revised and improved. For the time being it is better to
maintain the on-going structure of the Regulation to
avoid discrepancies and inequalities in the evaluation
process.
Evaluation of Judges and Prosecutors
44
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
87
Independence, integrity and impartiality as evaluation criteria
All judges/prosecutors should be evaluated against the values of independence,
integrity and impartiality, which truly represent judge's/prosecutor's
prerequisites. It may be considered to stipulate that the absence of such values
or negative evaluation of either of them, however, implies a negative assessment
even if all other parameters are positive. Such consequence would have to be
established by law.
x x xKJCL;
KPCL
5, 9,
11,
15
P
Implemented: KJC/KPC Law refer to the impartiality as evaluation
criterion. The Regulations refer to independence and impartiality.
Action point: Independence as criterion should be included in the law.
The consequence of a negative evaluation against these criteria could be
considered.
No Law amendment was made to reflect this
recommendation
II
&
III
88
Evaluation frequency
The minimum evaluation frequency should be established by law. It may be
considered to distinguish between different categories of judges and prosecutors
and to differentiate the frequencies between more and less experienced
judges/prosecutors.
x x xKJCL
KPCL21
P
Implemented: The evaluation frequency is determined in both
Regulations.
Action point: The minimum evaluation frequency should be established
by law. A differentiated evaluation frequency may be considered in
correlation to the years of experience of a judge/prosecutor.
KPC and KJC Law Amendments introduced the minimum
evaluation frequency. A differentiated evaluation
frequency is considered in correlation to the years of
experience of a judge/prosecutor. Art 19 LKJC and Art.
21 of the Law on KPC are amended accordingly.
II
&
III
89
Quantitative and qualitative evaluation and independence
Kosovo has opted for evaluating judges/prosecutors both by quantitative and
qualitative indicators. This is in accordance with international standards and
should be established as a principle by law. It should be stated explicitly that the
evaluation of the performance of judges/prosecutors shall not interfere with
their independence, particularly with the merit of the rulings/legal acts, including
the facts proved and not proved and the underlying assumptions and
assessments.
x x xKJCL;
KPCL
2, 5,
9, 11,
13,
15,
21
P
Implemented: The Regulations of both Councils foresee an evaluation
based on qualitative and quantitative indicators.
Action point: A basic provisions should be established by law and the
laws should explicitly state that evaluation of the performance of
judges/prosecutors shall not interfere with their independence.
The provision has been introduced in the Regulation on
Performance Evaluation of Prosecutors, not in the
Amended Law on KPC and Law on SP
II
&
III
90
Quality indicators
As it is impossible at the moment to rely upon widely accepted quality criteria,
quality indicators should at least be chosen by wide consensus among legal
professionals. The Councils should play a central role in the choice and the
collection of "quality" data, in the design of the data collection procedure, in the
evaluation of results, in its dissemination as feed-back to the individual actors on
a confidential basis, as well as to the general public.
x x9, 11,
21P
Implemented: Both Regulations foresee quality indicators which were
selected on the process of elaboration of the Regulations.
Action point: The information to the general public could be enhanced .
No changes have occured with regard to the
implementation of this recommendation
45
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
91
Sources of information
Sources of information be varied and diversified. They should include
a) a sample of decisions/procedural documents selected by the Evaluation
Committee/supervisor
b) and by those being evaluated,
c) personal file of the judges/prosecutors,
d) the self assessment, objections and interview of the evaluated,
e) evaluation report by Court President/Chief Prosecutor, and or head of
department of the evaluated,
f) other reports of supervisors,
g) final disciplinary decisions,
h) the statistical elements provided by the supervisors and by data-gathering
systems with varying levels of sophistication
i) other documents showing managerial skills for managerial positions
(instructions, work plans, activity reports, etc.),
j) other documents containing objective information relevant for the professional
activity and personal behaviour, as appropriate.
Once agreed that the assessment should not only consist of an examination of
the legal expertise and the general professional abilities of judges/prosecutors,
but also of more personal abilities, such as their personal qualities and their
communication skills, it should be considered the usefulness of interviewing
other judicial stakeholders, like clerks and lawyers. The sources of information
should be listed demonstratively by law.
x x xKJCL,
KPLC
9, 13,
21P
Implemented: KJC's/KPC's Regulation contain a catch all clause referring
to documents which contain objective and relevant information relevant
on the professional activity and the personal behaviour that affects the
professional activity.
Action point: The law still needs to be revised and consequently both
Regulations.
The Laws on KPC and SP haven't been amended on these
points. The Amended KPC's Regulation on Evaluation of
the Performance of Prosecutors has improved the source
of information system.
46
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
92
Personal files of judges and prosecutors as source of information
The judge's/prosecutor's personal file is located in the KJC/KPC. The Evaluation
Committee is recommended to request to the Council the information to be
assessed. Given the fact that some information may have confidential nature,
KJC/KPC shall define in advance which information may be disclosed and to
whom.
It is recommended to disclose to the Evaluation Committee
• Biographical registration;
• Academic qualifications;
• Professional path;
• Disciplinary registration of the judge/prosecutor;
• The results of previous evaluation procedures;
• If applicable, the contents of previous decisions regarding evaluation or
disciplinary matters;
• Training received
Only the final decisions (both in evaluation and disciplinary matters) should be
assessed for evaluation purposes.
x x BP P
Implemented: Both Regulations refer to the personal files of the
judges/prosecutors, which should be disclosed to the Evaluation
Committee.
Action point: The decision on which documents within the personal file's
shall be disclosed is not yet taken. This recommendation will have to be
implemented in any evaluation.
The practice related to composition and keeping of the
personal file and of the file for the evaluation process,
assessed to be already in place, has to be confirmed and
encouraged. The “Regulation on the organization and
functioning of the Council” should include rules on the
personal file (composition, Unit in charge of custody,
management…) and the right of access by the relevant
Prosecutor.
II
&
III
93
Statistics as source of information
It needs to be ensured that data used for evaluation purposes are exhaustive and
accurate.
x x
5, 9,
13,
21
P
Implemented: Both Councils have set up an electronic data basis with
relevant data referring to single judges/prosecutors.
Action point: The system should be regularly improved and developed.
Improvement and development is still recommended.
II
&
III
94
Reversal rate as source of information
In Kosovo judges/prosecutors are inter alia evaluated considering the percentage
of the decisions reversed on appeal as an indicator. An objective evaluation of
the quality of judicial/prosecutorial decisions may be one of the elements
relevant for the professional assessment of a single judge/prosecutor, (but even
in this context one should take into account the principle of internal
independence and the fact that reversal of decisions must be accepted as a
normal outcome of judicial/prosecutorial procedures, without any fault on the
part of the first judge/prosecutor). It is recommended to avoid the use of
reversal rates as a too important indicator to assess the quality of the
judicial/prosecutorial activity. It should be underlined that the quality of the
outcome of a single case depends heavily on the quality of all procedural steps
(initiated by the police, public prosecution, private lawyers or parties), so that
evaluation of judicial/prosecutorial performance is impossible without evaluation
of each single procedural context. If the reversal rate is taken into account it
needs to be made clear that only qualitative breaches of the law may be
considered in the evaluation.
x x xKJCL,
KPCL
9, 11,
13,
19,
21
P
Implemented: The KJC Regulation explicitly refers to statistical data as
subsidiary indicator and establishes that only substantive breaches of the
law are taken into account when referring to the reversal rate.
KPC Regulation has set out a procedure that ensures that statistical data
are not the predominant element of evaluation.
Action point: The KJC Regulation notwithstanding declaring statistical
data as subsidiary indicator refers mainly to statistics, thus it should be
revised as to ensure that statistical data are de facto a subsidiary element
in the evaluation.
This recommendation has to be considered as
implemented on by-law level.
47
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
95
Decisions/legal acts as source of information
In Kosovo rulings/prosecutorial acts are assessed for evaluation purposes.
KJC/KPC are recommended to ensure that only the formal validity of the act, its
logic, the speed with which it is made and the extent to which the
jurisprudential/legal knowledge of the judge/prosecutor is up-to-date are taken
into consideration. The judge's/prosecutor's interpretation of the law and
assessment of facts shall never be taken into account.
x x
5, 9,
11,
15,
21
P
Implemented: In the training the ratio behind the assessment of
rulings/acts of prosecutors was explained.
Action point: In further evaluations the Councils will have to be attentive
to this recommendation.
The Project recommended to introduce among the
general principle of evaluation of prosecutors the
following provision: "Evaluation cannot have as object
the merit of the case or the content of decisions". The
recommendation has not been accepted.
II
&
III
96
Rules for randomness of selection of decisions
The Councils should establish general criteria to select the decisions to be
analysed, so that the sampling is informative of the work done by the
judge/prosecutor evaluated. For example, it might be established the number of
decisions to be analysed by area of jurisdiction, by procedural specie, by subject,
etc.
x x BP P
Implemented: KPC's Regulation contains a general rule referring to the
time frame of evaluation. KJC adopts a decision for random selection of
judges' decision at the beginning of each year.
Action point: KJC's decision for the random selection of cases just defines
the number of cases to be assessed. Also KPC is recommended to refer to
the number of cases, but also to area of jurisdiction, procedural specie,
subject, etc.
The KPC's amended Regulation (December 2015)
introduced a more specific rule on random selection of
cases, based on previous experience
II
&
III
97
Conduct out of office or personal beliefs as source of information
Judge’s/prosecutor's conduct in private or the judge's/prosecutor's political,
ideological and religious opinions should not be taken into consideration except
when such conduct has repercussions on the credibility of their professional
activity and the image of the legal institution concerned.
x x3, 6,
14P
Implemented: In the training the ratio behind the assessment of
behaviour/belief of judges/prosecutors was explained. KPC Regulation
explicitly defines that only such conduct out of office shall be assessed 'as
far as it implies with the professional activity'. KJC's Regulation refers to
'objective and relevant information on the personal behaviour affecting
the professional activity of the judge'.
Action point: In further evaluations the Councils will have to be attentive
to this recommendation.
Further implementation of this recommendation by the
Evaluation Committees and Councils is needed.
II
&
III
98
Time standards for the resolution of court cases
If the compliance with time standards is taken into account it needs to be
ensured that differences in the difficulty and lengthiness of cases do not affect
negatively on the evaluation.
x 21 Y
Implemented: The revised KJC and the new KPC Regulation does not
refer (any more) to time standards.
Action point: KJC Regulation on Defining the Norms of the Work of
Judges weightens the work of judges very roughly, for example referring
to the panel composition or to whether a case is solved by an acceptance
of the guilt or punitive order and all other criminal cases.
No changes have occured with regard to the
implementation of this recommendation
II
&
III
99
Case resolution order
This indicator seems useless, if not prejudicial. Once compliance with time
standards for case resolution and with legal deadlines for drafting court decisions
are comprehensively assessed, the assessment of the compliance with the case
resolution order is not necessary any more.
It is not recommended to not retard a case just to comply with the case
resolution order.
x BP NAction point: The KJC's Regulation should be revised in the regard to the
case resolution order.
No changes have occured with regard to the
implementation of this recommendation
48
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
100
Procedure of evaluation of judges and prosecutors
The procedure should include the participation of those in a supervisory position
and should enable judges/prosecutors to express their view on their own
activities and on the assessment of these activities. Judges/prosecutors should
have the right to draw up reports on themselves, providing a profile of their
professional activities and outlining the organizational criteria aimed at
improving levels of efficiency, and subordinating to the functions of the office.
Judges/prosecutors should have the right to be heard. Moreover, the Councils
should not substitute itself for the relevant judicial body entrusted with the
individual assessment of judges and indirectly prosecutors. Basic provisions
should be lined out in the laws.
x x xKJCL,
KPCL
3, 9,
13,
19,
20,
21
P
Implemented: The Regulations of both Councils foresee the evaluation by
the Chief Prosecutor/Court President and the possibility of judges and
prosecutors to deliver a self evaluation and to object the assessment in
different phases of the procedure. In the training focus was put to
explain the difference between evaluation and judicial review.
Action point: Basic provision will have to be included in the law. It may be
considered to include a mandatory interview.
The amended Laws on KPC and SP don't contain this
provision.
II
&
III
101
Scoring in the evaluation and consequence of the evaluation
At the end of the evaluation, a score should be given which may vary from
positive, satisfactory to unsatisfactory. An average or low score should require
that the judge or prosecutor participates in specific professional training and
requalification courses. In general, a second negative evaluation should
determine the latter’s removal from office. The scale of grades and, particularly,
the definition of the scope of each grade, as well as the consequences of the
evaluations should be prescribed by law, for the sake of legal certainty and
transparency.
x x xKJCL,
KPCL
20,
21P
Implemented: Both Regulations foresee a scoring at the end of the
evaluation.
Action point: The legal basis for the scoring and the consequences of
evaluation needs still to be established.
The amended Laws on KPC and SP don't contain this
provision. The secondary normative acts can be
considered an adequate legal base.
II
&
III
102
Scoring per criterion and not per indicator
It is recommended to score only criteria and not each indicator. Indicators that
are not relevant for the respective judge/prosecutor, or if there is nothing to be
specified on a certain indicator, it is not necessary to use it. Indicators shall be
seen as a tool to facilitate evaluation of certain criteria.
x x 21 P
Implemented: The ratio of this recommendation was discussed in the
trainings.
Action point: The recommendation will have to be implemented in each
process of evaluation.
For Prosecutors the scoring is per indicators and criteria.
To score only criteria saves time but is less transparent.
Clear rules for the scoring system are established by the
Regulations.
II
&
III
103
Appeal against decisions on the evaluation
The procedure should enable judges/prosecutors to challenge assessments
before an independent authority or a court.
An appeal to the Supreme Court might be considered. The appeal might be
restricted to questions on law.
x x xKJCL,
KPCL
3, 9,
11,
19
20,
21
N Action point: KJC/KPC Law will have to be amended.The amended Laws on KPC and SP don't contain this
provision.
49
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
104
Profile of members of the Evaluation Committee
In order to guarantee the transparency of the nomination, the profile of the
members of the Evaluation Committee should be defined in the law/by-law,
ensuring that those members have professional experience and a high level of
professional performance. For this purpose, the legal provisions may require a
minimum of seniority and a minimum grade in the evaluations.
x xKJCL;
KPCL21
P
Implemented: KJC's Regulation requires that the chair of the Evaluation
Committee is a judge from the Supreme Court and all members should
have at least 5 years experience as judge. KPC Regulation foresees that
the members shall be elected from several levels of the prosecution
offices.
Action point: Both Councils should establish clearer rules on the profile
of the members. It should not be sufficient to be a judge/prosecutor of a
certain level, but also to have performed excellently during a certain
period of time.
This recommendation is addressed partially by adding the
following provision in Art. 11 of the LA, amending Art 14
B of the basic Law: 1. Prosecutors Performance
Assessment Committee consists of prosecutors with
experience and high moral integrity in and personal. The
same model is adopted for the KJC's Evaluation
committee (amendments of Article 19, LKJC
II
&
III
105
Annual performance coaching session
In addition to the regular evaluations by KJC/KPC it is recommended to consider
the obligation of the Court President/Chief Prosecutor to carry out yearly
“performance coaching session' with all judges/prosecutors in their
courts/prosecution office, which should be recorded in writing. The aim of this
could be:
• Identify strengths and weaknesses
• To address performance weaknesses at an early stage and agree on objectives
and measures to ensure that the judge/prosecutor improves
• To identify and develop training needs and a training and career plan for each
judge/prosecutor
• To address any weaknesses identified by the Performance Evaluation
Committee
This tool should be used primarily as developmental tool and be based on the co-
operation. It should not be seen as tool for policing judges/prosecutors, but as
means of encouraging them to improve, to plan the career etc.
x x21,
BPN
Action point: The establishment of an annual performance coaching
session is recommended to be introduced.The recommendation is not implemented
50
Catalogue of RecommendationsC
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KP
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lega
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
106
Tasks of the PPRU
The mandate of the Unit is foreseen in the Law on KPC, which establishes among
others the task to report on the work of the prosecution offices (Article 15.1.
LKPC). It is recommended to bring Art.2.1. of the Regulation on the Functioning
of the PPRU in line with the law and to stipulate that the unit is a body under
direction of the KPC that has inter alia the mandate to collect information from
all prosecution offices for individual performance of prosecutors and for the
organization of the work of the offices and to elaborate and present reports to
the KPC regularly and upon a request.
x BP Y Implemented: The Regulation was accordingly revised in October 2013.
The amendments of the LKPC adopted on 28 May 2015
provides establishment of a separate Secretariat of the
KPC and issuing of Regulation on the Secretariat. It is
recommended that the structure and the tasks of the
PPRU be reviewed and revised in accordance with the
new law amendments and the KPC's policy documents
II
&
III
107
Tasks of the Training Office within the PPRU
The Article of the Regulation on the Functioning of the PPRU on Training Office is
not in compliance with the KJI Law and the KPC Law. Providing training is in the
competence of KJI. According to Article 4.1.23 KPC Law KPC shall "determine
policies, standards and instructions related to the training of prosecutors and
other personnel and overseeing the implementation of professional training
and development of prosecutors by the Institute or other training associations or
organizations." The Regulation should be revised as to bring it in line with the
Laws.
x BP Y Implemented: The Regulation was accordingly revised in October 2013.
The amendments of the LKPC adopted on 28 May 2015
provides establishment of a separate Secretariat of the
KPC and issuing of Regulation on the Secretariat. It is
recommended that the structure and the tasks of the
Training office be reviewed and revised in accordance
with the new law amendments, the Regulations and the
KPC's policy documents regarding the training of
prosecutors. The Project submitted a Concept document
on training for judges and prosecutors in November 2015
51
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
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Stat
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of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
108
Disciplinary proceedings as task of the Councils
It needs to be ensured that the competence to carry out disciplinary proceedings
against judges/prosecutors is entirely assigned to the Councils or mainly
assigned to the Councils in co-operation with other bodies, for example such
responsible for investigation.
x x x
3, 5,
6, 11,
13,
16,
18,
20,
22
Y
Implemented: The Constitution and the KJC/KPC Law assigns to the
Councils the power for disciplinary proceedings. The investigation is
carried out by ODC.
The status of this recommendation remains unchanged.
II
&
III
109
General principles
General principles guiding the disciplinary proceeding should be established by
law, such as
• Principle of legality
• Principle of equality before the law
• Presumption of innocence
• Principle of in dubio pro reo
• Principle of proportionality
• Principle of independence and impartiality
• Principle of publicity
• Principle of confidentiality
x x xKJCL,
KPCL
2, 3,
4, 9,
22
NAction point: The basic provisions governing the disciplinary proceedings
have to be established by law.
No amendment was made to reflect this
recommendation. The status of this recommendation
remains unchanged.
II
&
III
110
Composition of the Councils in disciplinary proceedings/Reconsideration
process to the Councils and appeal to independent court
The review of decisions of the Disciplinary Committee by the Councils should be a
reconsideration procedure, which is restricted to questions of law. Thus the
Council would not be obligated to hold a hearing as to comply with fair trial
standards. Furthermore, decisions of the Council should be reviewed by an
independent court (for example Supreme Court). With a view to this appeal
procedure all members of the Councils, including the members of the Disciplinary
Committees, may participate in the reconsideration procedure.
x x xKJCL,
KPCL
3,6,
9, 11,
13,
22
P
Implemented: Both Councils have put forward a policy recommendation
foreseeing a reconsideration procedure to the Councils and an appeal
procedure to the Supreme Court. This solution would also solve to
problem often encountered by KPC of the missing quorum when deciding
on 'appeals' in disciplinary issues.
Action point: The revision of the law is pending.
The recommendation on the principal of Judicial review
of the Council's disciplinary Decisions was not taken into
consideration and is not reflected in the amendments of
the Law on KJC/KPC.
Disciplinary System
52
Catalogue of RecommendationsC
om
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ne
nt
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
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of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
111
Rotation of members of the Disciplinary Committee
The rotation of the members of the Committee, during the five years term of the
members of the Council may allow different and fruitful new approach to such a
sensitive matters as disciplinary liability of the judges/prosecutors, giving a
chance to other members of the Councils also have a more intense and effective
participation in this very important competence of the Councils.
It would be recommendable to foresee this by law. However as the Law on
KJC/KPC does not prevent a rotation of Committee members that possibility
could be considered in the regulation, establishing, for instance a 2,5 years term,
ensuring a rotation of members in the middle of the Council 5 years term.
x x BP NAction point: A rotation principle of the members of the Disciplinary
Committee could be considered.The status of this recommendations remains unchanged
II
&
III
112
Definition of misconducts
It is recommended to define ‘performance issue’, ‘negligence in performing’,
‘failure to perform’, ‘abuse of judicial/prosecutorial functions’, ‘failure to perform
independently’ and ‘failure to perform impartially’ more clearly in compliance
with the principle ‘nulla poene sine lege’. Also the delimitation between
disciplinary issues and performance issues should be clarified.
Disciplinary misconducts have always to be established by law and not by
regulations.
x x xKJCL,
KPCL
1, 5,
6, 13,
14,
18,
20,
22
N
Action point: The laws need to be amended accordingly. Article 34(3) KJC
Law, which foresees that KJC may issue regulations as to define the
misconducts, has to be deleted.
No Law amendment took place for this recommendation.
II
&
III
113
Erroneous judicial/prosecutorial acts as disciplinary misconduct
A judicial/prosecutorial act shall never be object of a disciplinary proceedings as
such acts can only be criticized by the exercise of the means of legal remedies as
provided by law for the litigants except in the cases of manifest violation of the
law caused by ignorance or inexcusable negligence.
x x xKJCL,
KPCL
5, 11,
13,
15,
20,
21,
22
N
Action point: The laws should delimitate clearly disciplinary misconduct
from aspects that need to be addressed by legal remedies. In practice
this delimitation needs to be established by a case law.
The status of this recommendation remains unchanged.
53
Catalogue of RecommendationsC
om
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
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mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
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Stat
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n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
114
Disciplinary misconduct and performance issues
Ethical standards establish best practice. Not every breach of a standard of
professional conduct mentioned in the Code of Professional Ethics should of itself
constitute a disciplinary infringement. The Code of Ethics just serves as self-
regulatory instrument and as general rules that guide the activities of
judges/prosecutors. Only serious failures to observe professional standards shall
be considered. A clearer provision is needed as to avoid an automatism between
a breach of a standard of the Code of Ethics and a misconduct in the sense of the
Law.
x x xKJCL,
KPCL
6, 11,
13,
21,
22
N
Action point: The laws should not foresee that a breach of the Code of
Ethics automatically constitutes a misconduct. A clearer delimitation
between performance issues and disciplinary relevant issues is needed.
The status of this recommendations remains unchanged
II
&
III
115
Commentary to the Bangalore principle as guidance document in disciplinary
proceedings
In the difficult exercise to delimitate disciplinary relevant behaviours from
performance issues the Disciplinary Committees and the Councils are
recommended to use the Commentary to the Bangalore Principles, which
contains a collection of international best practice examples relating to the main
values of the judiciary.
x x 14 P
Implemented: The Project has elaborated a correlation table which links
provisions of the Code of Ethics for Prosecutors with Kosovo law
provisions and paragraphs of the Commentary to the Bangalore
Principles. Extracts of the Commentary were translated into Albanian and
disseminated to the Councils.
Action point: When interpreting the law the relevant bodies are advised
to consult these documents.
The Correlation table elaborated by the Project and
submitted to the KJC, KPC and ODC in 2013 is a very
useful document that has to be applied by disciplinary
bodies. The recommendation is not implemented.
II
&
III
116
Disciplinary misconduct of member of the Councils
A specific provision defining the disciplinary misconduct and the disciplinary
sanctions for members of the Council is needed as well as clear rules on the
criteria for suspension and the procedure to be adopted in such cases.
x x xKJCL,
KPCL9, 22 N Action point: The laws need to be amended accordingly.
The status of this recommendations is implemented
partially since it was not included in the amendments of
the Law on KJC/KPC. The KJC issued a Regulation on
disciplinary procedure against members of the Councils.
The KJC still has a Draft Regulation. Both Regulations are
commented by the Project. The respective
recommendations are submitted in 2015.
54
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
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ple
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nta
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n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
117
Basic procedural provisions
A basic decision needs to be taken on whether to include in the KPC/KJC Law
provision regarding record keeping, evidence taking, requirements related to
evidences, etc. Alternatively it could be considered to refer to the provisions or
to part of provisions of the Criminal Procedure Code, as far as there are no
particular provisions in a KJC/KPC Law.
x x xKJCL,
KPCL
2, 3,
4, 6,
9, 22
N Action point: The laws need to be amended accordingly. The status of this recommendation remains unchanged.
II
&
III
118
Initiation of disciplinary proceedings
The legislator will have to take a basic decision to whom to assign the power to
initiate the disciplinary proceeding, including investigation. In most countries the
opening of a disciplinary proceeding, including also the investigation, is taken by
the competent Council or in countries without a Council by the competent
independent disciplinary body. Opening disciplinary investigations against a
prosecutor/judge is a decision with a strong impact on the prosecutor’s
reputation, daily work, career and personal life.
Depending on this basic decision the law will have to make sure that
competences of the ODC and the procedure between ODC and the Disciplinary
Committees are harmonized.
x x xKJCL,
KPCL
3, 6,
13,
14,
18,
22
N Action point: The laws need to be amended accordingly. The status of this recommendation remains unchanged.
55
Catalogue of RecommendationsC
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of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
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mb
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con
cern
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lega
l act
Inte
rnat
ion
al
stan
dar
d/o
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nta
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n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 119
Nature and task of ODC as body and qualifications, selection and terms of ODC
staff
The ODC is the competent body for investigation in disciplinary issues of judges
and prosecutors. The tasks and responsibilities of ODC and of its staff need to be
established by law and should cover at least the following aspects:
• competences and responsibilities of ODC
• qualification of ODC staff, taking into account that the Director and the
Disciplinary Counsels/Prosecutors should be experienced judges or prosecutors
with at least 8 years experience, who should be seconded by joint decisions of
both Councils based on objective criteria referring to merits and an open
procedure
• Qualification of supporting ODC staff
• selection, term, responsibility and disciplinary liability of ODC
Director/Counsels/Prosecutors/staff
• suspension of the Director and the Counsels
• tasks and the power of Director/Counsels/Prosecutors, to take all the necessary
measures to ensure proper investigation
• conflict of interest and prevention from duties of
Director/Counsels/Prosecutors
• reporting of ODC
• co-operation with other bodies
• Budget of ODC
• communcation with the public (spokesperson, which kind of information shall
be disclosed, including as a rule beyond the confirmation or denial of the
existence of a complaint, explanation of the general procedural steps of the
investigation taken by ODC and requirement of not having a precipitated trial by
the public opinion etc)
x xKJCL,
KPCL
14,
20,
22
N
Implemented: Some basic provisions are already contained in KJC/KPC
Law.
Action point: a separate law governing the scope, repsonsibilites of ODC
as body, it s staff are needed.
The status of this recommendaiton remain unchanged.
The Draft Law on the ODC and a Concept document
supporting the Draft Law were drafted with the Project
experts' contribution in 2015. However the Draft Law on
the ODC is still under review and discussions in the MoJ.
56
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
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of
Im-
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nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 120
Basic provision on investigation procedure
The law should contain at least the follwing basic provisions referring to the process of
investigtion:
• scope, definitions and general principles (independence, impartiality, confidentiality, non-
discrimination, presumption of innocence, compulsory investigation, ...)
• file keeping and confidentiality (direct access to all evidence collected during the
(preliminary) investigation by judge/prosecutor implies, necessarily, the existence of records
(written, audio or video) of witness’ testimonies during the investigation, all evidences, etc)
• statute of limitation
• defintion of a complaint, anonymous complaints, consequences of a withdrawal
(complainants should not have a right to initiate or insist on disciplinary actions but they
have be informed on the final outcome), rule on when to reveal or not to reveal the identity
of the complainant
• criteria for admissibility
• case assignment
• initial review and assessment of complaint
• dismissal of a complaint with the possibility of a review by the Councils
• preliminary examination of a complaint
• rejection of the complaint after a preliminary examination with a possibility of a review by
the Council
• decision to open an investigation based on a complaint or ex officio
• investigation, rights and obligations of subjects, interview, evidence taking
• suspension of investigation
• closure of investigation with a review procedure to the Council
• recommendation to initiate a disciplinary proceeding and content of a recommendation
• representation of ODC before DC, re-referral of a case to ODC
• transitional provisions
x xKJCL,
KPCL
2, 3,
6, 9,
13,
14,
22
NImplemented: Only few provisions are contained in the KJC/KPC Law.
Action point: a separate law governing the investigation procedure are
needed.
See above the comments on R.119
57
Catalogue of RecommendationsC
om
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ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
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of
Im-
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me
nta
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n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
I 121
ODC's functioning
ODC as any other independent institution may issue internal regulations on it's
functioning and organisation.
Internal regulations should establish rules for case assignment.
Regulations (with effect to third parties) should not repeat what is already
established by law, not contain job descriptions, not provide rights and
obligations, which need to be established by law.
x x x xKJCL,
KPCL
RoL,
20N
Action point: The ODC is recommended to issue internal regulation on
it's organisation and functioning.
The Councils are recommended to respect the independence of ODC
established by Law.
Clearer rules on the competence of ODC as independet body need to be
established by law, in particular the meaning of Articles 33/43 in
conjunction with Articles 36/46 KPC/KJC Law should be clarified.
The status of this recommendation remains unchanged.
I 122
Recruitment of ODC staff
ODC, KJC, KPC and competent bodies for the recruitment of civil servants are
recommended to establish a common understanding on how to interpret the
laws and by-laws regarding the recruitment of ODC staff. Clearer provisions in
the law in this regard are needed.
x x x xKJCL,
KPCLBP N
Action point: Elaboration of a common understanding on how to
interpret the laws and by-laws regarding the recruitment of ODC staff is
needed.
Revision of the laws in order to establish a clearer basis for the
recruitment of ODC staff is pending.
The status of this recommendation remains unchanged.
I 123
File keeping, records and communiction with parties
ODC, the Disciplinary Committees and the Councils are recommeded to ensure a
proper file keeping and to revise it's standard operational procedures in order to
fulfil the principles and standards applicable.
x x x BP, 9 P
Implemented: Standards of file keeping were addressed in the training
provided by the project and recommended in the 3 Manuals for
KJC/KPC/ODC and respective forms and templates.
Action point: Further attention on the improvement of the performance
in the investigation and disciplinary procedure and practice will be
needed.
The SOP and recommendations in regard with the file
keeping, records and communication with parties
elaborated by the Project and included in the pilot
trainings of the Project are partially used by the KJC,KPC
and ODC.
II
&
III
124
Admissibility, rejection without investigation/hearing
It is recommended to include admissibility criteria for the
investigation/disciplinary proceeding and to clarify when a procedure may be
decided without a investigation/hearing, i.e for example lapse of statute of
limitation and death of the suspected. Resignment/retirement/leave of the
suspected should not be a reason for closing the investigation or the disciplinary
proceeding.
x x xKJCL,
KPCL
2, 6,
9, 22N Action point: The laws need to be amended accordingly.
No amendment was made to reflect this
recommendation. The status of this recommendation
remains unchanged.
58
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
125
Statute of limitation
It is recommended to introduce a statute of limitation. In Europe these vary
widely. Rules need to be introduced when the limitation period starts to run, on
interruption in case of a repetiton and on suspension in case of
criminal/civil/administrative proceedings relating to the same facts.
x x xKJCL,
KPCL
2, 9,
22P
Implemneted: Both Councils have put forward a policy recommendation
to introduce a statute of limitation.
Action point: The revision of the law is pending.
The recommendations has been implemented partially
through the amendment process of the Law on KJC and
Law on KPC, in force since 15 July 2015. The
recommendaion is reflected in article 15 of the amended
law on KJC and article 17 of the amended law on KPC. In
both cases, a status of limitation for discipliarny
investigaiton and procedure has been set up. However,
due to the lack of a policy analysis prior the law
amenmends reflected in the statute of limitation a
transitional provision for the pending cases has not been
foreseen. Thus, a lot of cases have to be dismissed based
on the new law provisions.
II
&
III
126
Change in the scope of subject matter or widening of the scope of subject
matter
At any stage of the investigation and the disciplinary proceeding new evidences
may make a change in the scope or widening the scope of the subject matter
necessary. Respective rules on how to proceed need to be established by law. In
the phase of investigation a respective decision needs to be taken and the
concerned judge/prosecutor needs to be informed. In case of such event
occuring during the disciplinary proceeding the Disciplinary Committee shall be
required to refer the case back to the ODC if further investigation is necessary.
Where no further investigation is needed the concerned judge/prosecutor needs
to be informed and given sufficient time for presenting his/her evidences. Where
this occurs during a hearing, the hearing as to be suspended.
x x xKJCL,
KPCL
RoL,
1. 9N Action point: The laws need to be amended accordingly. The status of this recommendation remains unchanged.
II
&
III
127
Time lines
The time lines for opening investigation, holding a disciplinary hearing,
deliberations, for adopting the decision and for the execution of the sanction
should be established by law.
x x xKJCL,
KPCL
2, 9,
17,
18
P
Implemented: The laws contain rules on the time lines for the hearing
and for the submission of the proposal of dismissal and for the appeal. Action point: A preseciption period for establishing the decision should
be included in the law.
. The status of this recommendation remains unchanged.
59
Catalogue of RecommendationsC
om
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ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
128
Rights of judges/prosecutors subject to disciplinary proceedings
The law has to establish at least the following rights of the judges/proscutors
subject to the disciplinary proceeding:
• Along with the copy of the decision on opening a disciplinary proceeding, the
judge should be expressly notified to present, in a time limit, its written defence,
call a restricted number of witnesses, attach documents or require other
evidence measures;
• The charged judge/prosecutor may be assisted by a lawyer and the
judge/prosecutor/lawyer or representative should have direct access to the files
and material of the preliminary investigation, in the same time limit;
• The adversarial principle has to be respected.
• The judge/prosecutor is to be invited to provide the own statements/evidences
and other means of defense on the facts;
• The hearing should be public as a rule, with the exemptions allowed by
international law, and the law should expressly assure the right to the
judge/prosecutor, his lawyer or representative to be present during the hearings
and examine the witnesses.
• The decision has to be reasoned and the sanction in proportion to the
seriousness of the offence and be made public;
• An appeal has to be foreseen.
x x xKJCL,
KPCL
1, 3,
6, 9,
13,
14,
18,
22
P
Implemented: KJC/KPC Law foresee access to the case files, assistance by
a lawyer and self-defence.
Action point: the rights should be more clearly defined and an appeal has
to be introduced.
Art 15 of the LA-LKJC and Art 17 of the LA-LKPC set a statute of limitation for disciplinary cases, with the following amendment::5. The Proceedings shall not be initiated and implemented in the Commission after the expiry of one (1) year from the notification received in the Office of Disciplinary Counsel for the alleged violation and five (5) years from the date of the alleged violation
II
&
III
129
Disciplinary hearings
Basic rules on the disciplianry hearing, on when it should be open and under
which conditions it shall be closed and on the interruption of hearings shall be
included in the law. Hearings - as a rule - should be open, however under specific
cirumstances (for example public order, national security, protection of privacy)
it should be possible to close it for the public.
x x xKJCL,
KPCL
1, 3,
6, 9,
13,
18,
21,
22
P
Implemented: KJC/KPC Law foresee that in general meetings shall be
open.
Action point: Respective provisions have to be included in the law.
No amendment was made to reflect this
recommendation
60
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
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Im-
ple
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Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
130
Minutes of the hearings
From each hearing minutes should be established. The Disciplinary
Committees/Councils are recommended to ensure that the minutes are signed
by the parties present in the hearing. In this way the proceedings ensure
observance of the parties’ rights and legal interests. They could eventually make
their remarks if the transcript is not correct and/or ask for
correcting/supplementing certain parts of the transcript if not correctly written
down. In case the audio recording is not clear in certain passages this shall be
identified in the transcript. The parties may not add new elements, as the
hearing is closed, however, this approach would ensure the correctness and
value of the records/transcript as one of the main evidence in the decision
making by the DC, KJC/KPC. This should be foreseen also in the laws.
x x xKJCL,
KPCLBP P
Implemented: The minutes are regularly elaborated as a transcript from
the hearings. The need of a signature is clearly contained in the Manuals
elaborated by the Project and was subject of discussion in the trainings.
Action point: The responsible bodies will have to ensure that the parties
are informed of the availibity of the minutes and are requested to sign
them. The laws need to be amended accordingly.
The status of this recommendation remains unchanged.
II
&
III
131
Decision and deliberation
For the final decision, the engaging of experts, the definition of the subject of the
experts’ opinion, the interruption of a hearing, a decision of the DC/KJC/KPC shall
be necessary. Any member of the DC/KJC/KPC may at any time request
respective decisions. The law should foresee that besides the final decisions the
decisions of the DC/KJC/KPC in the course of the procedure shall not be subject
of an appeal.
It shall be explicitly stated that after having considered all facts and evidences the
DC/KJC/KPC shall reject the recommendation of the ODC in cases defined by law
or shall impose a disciplinary measure.
x x xKJCL,
KPCL
BP, 3,
9, 11
NAction point: The laws need to be amended accordingly.
The respectve amendments of the LKPC and LKJC (Art.16
LA-LKJA+C and Art. 17, LA-LPKC regulate partially the
Council's competneces in case of appeal and the content
and publication of the final decisions. However the other
aspects of the recommendation are not taken into
concideration by the law amendments.
II
&
III
132
Determining the disciplinary measure
The law should list the elements which have to be considered when determining
the disciplinary measure, like the degree of disciplinary liability; the motives for
committing the act; the previous work and behaviour of the judge or prosecutor;
the intensity of danger or injury to the protected value; the circumstances in
which the act was committed; and the personal circumstances of the respective
judge or prosecutor and his or her behavior after the respective conduct. Also
the mitigating and aggravating factors should be listed in the law.
x x xKJCL,
KPCL
2, 3,
6, 14,
22
N Action point: The laws need to be amended accordingly.No amendment was made to reflect this
recommendation
61
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
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d/o
the
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of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
133
Disciplinary measures
It is recommended to increase the number of sanctions in order to ease the
application of the principle of proportionality. The following measures could be
considered:
• A written warning which shall not be made public;
• Public reprimand;
• Reduction in salary up to a maximum of 50% (fifty per cent) for a period of up
to one (1) year;
• Temporary or permanent transfer to another court or prosecutor’s office;
• Demotion of a Court President to an ordinary judge or the Chief Prosecutor or
Deputy Chief Prosecutor to an ordinary prosecutor;
• Removal from office.
The laws need to clarify under which conditions which measures are to be
considered effective, deterrent and proportionate.
x x xKJCL,
KPCL
2, 3,
5, 6,
9, 14,
15,
17,
22
P
Implemented: KJC/KPC Law contain a list of disciplinary measures.
Action point: More measures are recommended and a clarification is
needed on when which measure needs to be applied.
No amendment was made to reflect this
recommendation
II
&
III
134
Suspension from the office
The Law should clearly state that the suspension may be imposed only in cases of
severe misconducts (by reference to the sanction that might be imposed) and the
continuation in office may be prejudicial to the investigation of the case, to the
service or to the prestige and dignity of the function. Moreover, the Law should
clearly stipulate that the enforcement of the suspension has to be carried out in
a manner that ensures the safeguard of personal and professional dignity of the
judge/prosecutor. A maximum suspension time has to be established by Law (for
example no more than 180 days; the former UNMIK/REG/2001/8 has foreseen a
90 days limit for temporary suspension). Clear procedural rules and competences
need to be established.
x x xKJCL,
KPCL2, 22 N Action point: The laws need to be amended accordingly.
No amendment was made to reflect this
recommendation
62
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
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Stat
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of
Im-
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nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
135
Urgent actions
The decision on the suspension is not necessarily linked with a decision on the
disciplinary liability. KJC/KPC Law clearly refer to any stage of the investigation or
the disciplinary proceeding and enable the Disciplinary Committees to act and
decide on a suspension without any determination of a disciplinary liability. This
enables the competent bodies to react appropriately and expediently in cases in
which the behaviour of a judge/prosecutor risks to damage the reputation of the
judicial/prosecutorial system as such. It is of course recommendable to act as
expedient as possible, however there is no need to hurry to an extent risking an
infringement of fundamental rights.
x x xKJCL,
KPCL
RoL,
1, 2N
Action point: The KJC/KPC Law need to be amended as to provide a
proper basis for suspensions. Article 23 KPC's Regulation on the
Performance of the Disciplinary Committee should be repealed
completely.
KPC/KJC are recommended to react in urgent cases by applying the
suspension procedure and not by hurrying up the disciplinary proceeding
to an extent infringing fundamental rights.
No amendment was made to reflect this
recommendation
II
&
III
136
Reference to different types of disciplinary misconduct in the decisions
The KJC/KPC Law foresee different types of misconduct. The decisions have to
clearly refer to one or more of these types listed in the law. The case law should
establish clear lines between the different misconducts so that the same/similar
behaviours are always subsumed under the same type of misconduct. The
following types are foreseen in the law:
• final decision for a criminal offense
• negligence in performing
• a failure to perform
• an abuse of the function
• failure to perform functions independently
• failure to perform functions impartially
• breach of the code of ethics (see recommendation above)
x xRoL,
1N
Action point: A revision of decisions has revealed a non unified
application of the law. A consistent case law should be established. The
Disciplinary Committees and the Councils are recommended to use the
checklist on the classification of a misconduct elaborated by the Project
and contained in the Manual.
The status of this recommendation remains unchanged.
The checklist elaborated by the Project and diseminated
to the KJC, KPC and ODC. It is also incuded in the training
programs. The implementation of the Checklist will
facilitate the persons and bodies in charge with
disciplinary proceedings.
63
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
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Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
137
Content of a Recommendation of ODC and a Decision of the Disciplinary
Committees/Councils
The structure of the Recommendation of the ODC and the decisions in the
disciplinary proceedings should follow the same pattern and contain at least:
• clearly establised subject matter citing the respective law provision/type of
misconduct
• disciplinary measure proposed/imposed citing the respective law provision
• course of the procedure (brief of steps taken)
• motivation, including
• legal basis
• summary of proven facts
- consideration of evidences/facts (missing in most decisions!)
- subsumption (explaining why and how the facts meet all elements of the law,
citation of case law, etc)
• instruction on the legal remedies (only decision)
x x11, 9,
22P
Implemented: Main elements are already contained in the
recommendations/decisions.
Action point: There is room for improvement. Well structured and clearly
etablished Recommendations facilitate the procedure and decision
making before the Disciplinary Committees/Councils. Well structured and
clearly reasoned decisions will help to ensure a unified application of the
law and to establish case law.
The amendments of teh LKJC/LKPC (Art 16 of the LA-LKJC
and Art 17 of the LA-LKPC) have stated in general terms
what the content of disciplinary decisions should include,
where in one provision the following is described:
" Such a decision of the Council should be reasonable
regarding the proofs administered by both parties,
interpretation of alleged violations and measure of
argumentative conviction that shall suit achievement of
aimed determination with this law. In such a case, the
decision of the Council should reflect, and justify
application of proportional principle in deciding for such a
matter. Such a decision becomes transparent based on
law conditionality over personal data of the Republic of
Kosovo". Further support to the ODC, KJC and KPC based
on the SOP provided by the Project is needed.
II
&
III
138
Appeal to an independent court
An appeal procedure against decisions of the Councils in the disciplinary area
should be introduced. The Supreme Court seems to be the most appropriate
appeal court against decisions of the Councils. An appeal as review on the merits
which allows a full review of the case, including the facts is recommended. The
appeal should be allowed to the concerned judge/prosecutor and the ODC: An
appeal should have suspensive effect, except in most serious cases. The appeal
deadline should be more than 2 weeks.
Only when a final decision establishes the removal of the judge/prosecutor from
the office, KJC/KPC should propose the removal to the President.
x x xKJCL,
KPCL
2, 3,
4, 6,
9, 11,
13,
16,
17,
18,
20,
21,
22
P
Implemented: both Councils have put forward a policy recommendation
foreseeing an appeal procedure to the Supreme Court.
Action point: The laws amendment is still pending.
The status of this recommendation remains unchanged.
64
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
139
Execution of the final decision
The law should make clear that the Council shall be responsible for processing all
sanctions established by a the final decision. The KJC/KPC shall submit the final
decision on the recommendation to remove a judge or a prosecutor to the
President.
The prosecutor or judge shall be notified by the Council regarding the decision of
the President on the removal.
Furthermore, the law should explicitly state that the Councils shall execute the
final decisions within a specified time, like:
• 3 months for admonition or reduction of the salary;
• 6 months for transfer or demotion sanction;
• 1 year for suspension or removal
x x xKJCL,
KPCLBP, 9 N Action point: The laws need to be amended accordingly. The status of this recommendation remains unchanged.
II
&
III
140
Publication of disciplinary decisions
The law should clearly stipulate in which manner and where final decisions of
the DC/KJC/KPC and/or the court of law should be published (for example: at the
website of the Councils in an anonymized manner, taking into account that
hearings as a rule should be open). In such a way not only the judiciary, but also
the general public is informed of the way in which the proceedings have been
conducted and to show that the judiciary does not seek to cover up reprehensive
actions of its members.
x x xKJCL,
KPCL
1, 11,
13,
22
N Action point: The laws need to be amended accordingly.
The amendments in Art. 16 of the LA-LKJC, and Art.17 of
the LA-LKPC have foreseen only in general terms the
publication aspect of disciplinary decisions - see above
R.137
II
&
III
141
Disciplinary record
In some European countries the sanctions on the disciplinary record of a
judge/prosecutor are automatically expunged after a certain period of time,
which normally is in correlation to the severity of the sanction. In others
countries the judge or prosecutor may apply for an expungement. In such cases
the Council or the competent disciplinary court has the discretion to decide
whether to expunge the record or not.
In other countries it is argued that the automatic expungement after certain
period of time will lump all the judges/prosecutors together: those who always
had an exemplary conduct during their careers and those who repeatedly
committed disciplinary offenses.
The law should establish a legal basis for Kosovo.
x x xKJCL,
KPCLBP N Action point: The laws need to be amended accordingly.
No amendment was made to reflect this
recommendation
65
Catalogue of RecommendationsC
om
po
ne
nt
No
of
Re
c.
Recommendation KJC
KP
C
OD
C
Mo
J/A
sse
mb
ly
con
cern
ed
lega
l act
Inte
rnat
ion
al
stan
dar
d/o
the
r
Stat
us
of
Im-
ple
me
nta
tio
n
Comments July 2014 Final Comments February 2016
Composition & Structure of Council
II
&
III
142
Documentation of the case law
Disciplinary decisions are of a very sensitive nature. The uniform interpretation of
the law and equal treatment of all judges/prosecutors is necessary in order to
ensure human rights and to enhance the trust of the public into the system. It is
recommended to improve the documentation of the decisions, to elaborate key
words, key sentences of the decisions and to make this documentation available
to all judges/prosecutors and the public.
x xBP,
11N
Implemented: The documentation so far is a basic collection of decisions.
Action point: The documentation of the decisions should be significantly
improved.
The status of this recommendation remains unchanged.
Abbreviation: Colours:
BP ………Best Practice
CL………..Law on Courts
Const … Constitution pink …… priority areas where law amendments are needed
DC……….Disciplinary Committee green ….prioity areas on the operational level
KJCL………Law on the Kosovo Judicial Council
KPCL…….Law on the Kosovo Judicial Council
ODC……Office of the Disciplinary Counsel/Prosecutor
RoL ….. Rule of Law Principle
SPL………Law on State Prosecutor
LA-LKPC -Law on Ammending and Supplementing the Law on the KPC
LA-LKJC - Law on Ammending and Supplementing the Law on the KJC
Y………….Fully implemented
P…………Partially implemented
N………..Not implemented
66
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