REGULATION NO. 2001/8
UNMIK/REG/2001/8
6 April 2001
The Special Representative of the Secretary-General,
Pursuant to the authority given to him under United Nations Security Council resolution 1244 (1999) of 10 June 1999,
Taking into account United Nations Interim Administration Mission in Kosovo (UNMIK) Regulation No. 1999/1 of 25 July 1999, as amended, on the Authority of the Interim Administration in Kosovo,
Having promulgated UNMIK Regulation No. 1999/7 of 7 September 1999, as amended, on the Appointment and Removal from Office of Judges and Prosecutors and UNMIK Regulation No. 1999/18 of 10 November 1999 on the Appointment and Removal from Office of Lay-Judges,
Noting that the Advisory Judicial Commission established by UNMIK Regulation No. 1999/7 ceased to function as of 31 December 2000,
For the purposes of establishing the Kosovo Judicial and Prosecutorial Council in order to enhance the development of an independent and multi-ethnic judiciary in Kosovo, and repealing UNMIK Regulation No. 1999/7 and UNMIK Regulation No. 1999/18,
Hereby promulgates the following:
Section 1
1.1 The Kosovo Judicial and Prosecutorial Council (hereinafter “the Council”) is hereby established.
1.2 The Council shall be responsible for advising the Special Representative of the Secretary-General on matters related to the appointment of judges, prosecutors and lay-judges, as required, and hearing complaints, if any, against any judge, prosecutor or lay-judge. The Council can decide upon disciplinary sanctions, as set out in section 7, other than removal from office of judges and prosecutors and from the function of lay-judges, as well as recommend such removals to the Special Representative of the Secretary-General, where appropriate. Upon request of the Special Representative of the Secretary-General, the Council may render advice on other issues related to the judicial system.
1.3 The Council shall adopt a code of ethics and conduct for: (a) judges, (b) prosecutors and (c) lay-judges that shall be effective upon the endorsement of the Special Representative of the Secretary-General.
1.4 The Council shall be independent in the exercise of its functions.
Section 2
2.1 The Council shall be composed of nine (9) members. The composition of the Council shall be multi-ethnic and reflect varied legal expertise. The Council shall include both local and international members. Members of the Council shall be distinguished legal professionals, such as but not limited to serving or former members of the judicial and prosecutorial bodies, members of the bar, professors of law, meeting the highest standards of efficiency, competence and integrity. They shall be independent and impartial. They shall not hold any position incompatible with their functions as members of the Council.
2.2 The members shall be selected and appointed by the Special Representative of the Secretary-General in accordance with the above principles and after appropriate consultations. One such member shall be designated by the Special Representative of the Secretary-General to serve as Chairperson of the Council.
Section 3
3.1 Upon appointment, each member of the Council shall subscribe to a solemn oath before the Special Representative of the Secretary-General. The form of the oath shall be as follows:
“I solemnly declare and promise to discharge the functions entrusted to me by UNMIK Regulation No. 2001/8, and administrative directions issued thereunder, and not to seek or accept instructions from any other source”.
3.2 The Special Representative of the Secretary-General may refer allegations that a member of the Council has failed to comply with his or her obligations under the present regulation to the Council which, after considering the allegation and the response of the member, shall submit a report to the Special Representative of the Secretary-General within thirty (30) days of receipt of the allegation. The Special Representative of the Secretary-General shall make a decision within fifteen (15) days of receipt of the report. The Special Representative of the Secretary-General may, in cases of allegations of serious misconduct, suspend the member until the final decision is taken. Notwithstanding the foregoing, the Special Representative of the Secretary-General may in exceptional circumstances take such action as he may deem appropriate in the exercise of his discretion.
3.3 The term of office of the members of the Council shall be one year. This term may be extended for such period(s) as the Special Representative of the Secretary-General may determine.
3.4 In the event of removal from office of one of the members of the Council pursuant to section 3.2, or in the event of a member’s death or resignation, the Special Representative of the Secretary-General shall appoint a new member as soon as possible. The member so appointed shall serve for the remainder of the term of the member being replaced.
Section 4
4.1 The Council shall elect from among its members a Vice-Chairperson who shall act in place of the Chairperson if the latter is temporarily absent.
4.2 The Council shall adopt the codes referred to in section 1.3 within a period of three (3) months after its first meeting. If the Council fails to adopt the codes within this period, the Special Representative of the Secretary-General shall issue such codes by administrative direction.
4.3 The Council may as necessary form committees and designate rapporteurs for the efficient discharge of its duties.
4.4 The Council shall convene meetings, as required, or upon request by the Special Representative of the Secretary-General. A quorum for a meeting shall be five (5) members of the Council.
4.5 Decisions of the Council shall be taken by an absolute majority of the members of the Council.
Section 5
5.1 The Council shall invite, by public announcement, applications of legal professionals in Kosovo for service as judges and prosecutors, as well as applications of qualified candidates in Kosovo for service as lay-judges. It may also accept recommendations from regional and municipal authorities, or judicial authorities and other bodies within the legal profession, regarding persons considered suitable to be interviewed as lay-judges. It shall review the individual applications and make its recommendation in writing to the Special Representative of the Secretary-General on candidates indicating the reasons therefore.
5.2 In reviewing individual applications, the Council members shall be guided by UNMIK's goal to establish a professional, independent, impartial and multi-ethnic judiciary and prosecution service.
5.3 The Special Representative of the Secretary-General shall appoint judges, prosecutors and lay-judges taking into account the recommendation of the Council under section 5.1.
5.4 The Council shall recommend to the Special Representative of the
Secretary-General the extension of appointment of serving judges, prosecutors
and lay-judges unless:
(a) The judge or prosecutor does not have the qualifications required by section 6.1 or has never performed his/her function or has ceased to perform them; or
(b)
The lay-judge has never performed his/her
function or has ceased to perform them.
The Special Representative of the
Secretary-General shall take a decision after
considering the recommendation of the Council.
5.5 A judge or prosecutor shall not hold any other public or administrative office or engage in any occupation of a professional nature, whether remunerative or not. The Council may authorize a judge or prosecutor under terms it may consider appropriate to engage in outside activities, such as to lecture or exercise a function in his/her field of competence, which do not affect the independence or dignity of their office.
5.6 A judge, a prosecutor or a lay-judge shall not engage in any activity incompatible with his/her functions, including involvement in political activities.
Section 6
6.1 Applicants for service as judges or prosecutors shall satisfy the following criteria:
(a) Have a university degree in law;
(b) Have passed the examination for candidates for the judiciary, or, in the case of applicants for the position of a judge in the Minor Offences Court, have passed the professional examination;
(c) Be of high moral integrity;
(d) Not have actively been engaged in discriminatory practices; and
(e) Not have a criminal record.
6.2 Except in the case of positions in the Minor Offences Court, applicants shall have relevant work experience in the field of law, i.e. three (3) years for the position of a Municipal Court judge (or a prosecutor) or of a judge of a Minor Offences Appeals body, seven (7) years for the position of a District Court judge (or prosecutor) and four (4) years for the position of a Commercial Court judge.
6.3 Applicants for service as lay-judges shall satisfy the following criteria:
(a) Be at least twenty-five (25) years of age at the date of submission of their application;
(b) Be of high moral integrity;
(c) Not have a criminal record; and
(d) Have professional qualifications and/or experience involving juveniles, if lay-judges will be involved in adjudicating actions involving juveniles.
Section 7
7.1 The Council shall be responsible for hearing all cases of alleged misconduct by judges, prosecutors and lay-judges for which a sanction is incurred.
7.2 A complaint against a judge, a prosecutor or a lay-judge may be submitted to the Council directly only by the Special Representative of the Secretary-General, or by the Co-Heads of the Administrative Department of Justice. The Council may also on its own initiative and after having duly informed the Special Representative of the Secretary-General and the Co-Heads of the Administrative Department of Justice, initiate against a judge, a prosecutor or a lay-judge a proceeding concerning such misconduct.
7.3 Disciplinary proceedings shall commence upon submission of a complaint to the Council, or upon a decision of the Council to initiate such proceeding. Promptly thereafter, the Chairperson of the Council shall designate one of its members as a rapporteur with the responsibility of investigating the case itself or, where the Judicial Inspection Unit is so requested by the Council, through the Judicial Inspection Unit and reporting to the Council the result of the investigation. The Council shall inform the person under investigation of the charges, the reasons motivating investigation and his/her rights to access the file on the case throughout the process as early as possible after the complaint is received prior to the date of his/her first appearance before the rapporteur.
7.4 When performing his/her duties, the rapporteur shall have a general power of inspection, verification and evaluation, including access to any useful document and court proceeding as well as the right to question any person working in the judicial system or any person who may provide relevant information related to the purpose of the inspection.
7.5 Where the Judicial Inspection Unit has been requested by the Council to investigate the case, its report shall be immediately added to the file. Where the Judicial Inspection Unit has not been so requested, the Council, before the end of the investigation, shall invite the Administrative Department of Justice to present its position on the case in writing, which shall be also added to the file.
7.6 Once the investigation is completed, the rapporteur shall prepare a report containing his/her conclusions about the case, which shall be added to the file. The Council shall thereafter, pursuant to procedures established by it, notify the person under investigation and submit to him/her the allegations and supporting documents. The person under investigation shall be summoned to appear in person at a hearing to be held by the Council within thirty (30) days from the date on which the aforementioned notification was given.
7.7 The person under investigation may be assisted and, in case of sickness or for other justified reasons, represented by a peer or a defense counsel who shall be granted access to the file, including all documents collected during the investigation.
7.8 The failure to appear at the hearing of the person under investigation, or of the peer or defense counsel representing such person shall not prevent the Council from considering and deciding on the case.
7.9 During the hearing, a representative of the Judicial Inspection Unit, if the latter participated in the investigation of the case, shall be heard by the Council, the rapporteur’s report shall be read and the person under investigation and/or his/her peer or defense counsel shall be invited to present their arguments for the defense. The hearing before the Council shall be public unless otherwise decided by the Council, where considered appropriate, in particular if the interest of justice so requires.
7.10 The Council shall decide, pursuant to section 4.5, whether there are sufficient grounds for establishing that the judge, the prosecutor or the lay-judge has committed misconduct as defined in sections 7.11 and 7.12, and shall determine one of the sanctions listed in (a) to (c) below, or recommend the sanctions listed in (d) and (e) below to the Special Representative of the Secretary-General:
(a) Reprimand;
(b) Reprimand and warning;
(c) Suspension from office up to six (6) months (for judges and prosecutors);
(d) Removal from office (for judges and prosecutors); or
(e) Removal from the function of a lay-judge.
7.11 Misconduct of a judge or a lay-judge is:
(a) Commission of a criminal offence;
(b) Neglect of judicial functions;
(c) Acting in a manner incompatible with the obligation of a judge to be independent and impartial;
(d) Having been placed, by personal conduct or otherwise, in a position incompatible with the due execution of his/her office; or
(e) Breach of the code of ethics and conduct.
7.12 Misconduct of a prosecutor is:
(a) Commission of a criminal offence;
(b) Neglect of prosecutorial functions;
(c) Acting in a manner incompatible with the obligation of a prosecutor as determined by law;
(d) Having been placed, by personal conduct or otherwise, in a position incompatible with the due execution of his/her office; or
(e) Breach of the code of ethics and conduct.
7.13 In determining or recommending sanctions under section 7.10, the Council shall ensure sanctions are proportional to the misconduct for which they have been imposed.
7.14 The Special Representative of the Secretary-General shall take into consideration the recommendation of the Council concerning the removal from office of a judge or a prosecutor or from the function of a lay-judge and may apply such disciplinary sanction(s) as the Special Representative of the Secretary-General deems appropriate.
7.15 The Special Representative of the Secretary-General may, in case of an emergency, and after having requested the advice of the President of the Court where the judge under investigation exercises his/her function, or the President of the directly higher Court if the judge in question is the President of a lower court, propose that the Council suspend the judge from his/her function until a final decision is taken regarding the case. Such decision shall be taken only if the interest of justice so requires and shall be temporary, not made public and not deprive the judge of his/her salary. The same procedure applies to prosecutors and deputy prosecutors, and, except for the salary, to lay-judges.
7.16 The temporary suspension shall cease to have effect if, after the expiration of a period of ninety (90) days after the start of the proceeding, the Council has not sanctioned the judge, the prosecutor or the lay-judge, or has not recommended his/her removal from office.
Section 8
8.1 The honorarium to be paid to the members of the Council shall be determined by the Special Representative of the Secretary-General.
8.2 The facilities required for the functioning of the Council shall be provided by the Special Representative of the Secretary-General.
Section 9
The Special Representative of the Secretary-General may issue administrative directions for the implementation of the present regulation.
Section 10
UNMIK Regulation No. 1999/7 and UNMIK Regulation No. 1999/18 are hereby repealed.
Section 11
The present regulation shall supersede any provision in the applicable law which is inconsistent with it.
Section 12
The present regulation shall enter into force on 6 April 2001.
Hans Haekkerup
Special
Representative of the Secretary-General