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Post-conflict Criminal Investigation by International Specialist. Standard v. realities (Kosovo example)

Andrey Antonov*Andrey Antonov holds PhD in Law, specialising in Criminal Procedure, Criminal Investigation and Crime Detection. He worked in Kosovo, with interruptions, from 2000. Since June 2011, he is the Executive Officer of the UNMIK Human Rights Advisory Panel (HRAP). The views and opinions expressed in this article are those of the author and may differ from those of the members of the Human Rights Advisory Panel (HRAP), the United Nations, or any other organisation, and are in no way binding on them.

In June 1999, the United Nations (UN) established its’ first ever mission as a transitional interim government, with full authority in Kosovo.All references to Kosovo in this article are done without prejudice to status and are done within the context of United Nations (UN) Security Council resolution 1244, adopted on 19 June 1999, which in its preamble referred to the people of Kosovo enjoying substantial autonomy within the Federal Republic of Yugoslavia. The United Nations Interim Administration Mission in Kosovo (UNMIK) was mandated to swiftly develop a transitional civil administration for Kosovo, effectively governing a territory where: “local judicial and legal capacity was found to be non-existent, out of practice or subject to intimidation by armed elements.” Comprehensive review of the whole question of peacekeeping operations in all their aspects. Report of the Panel on United Nations Peace Operations, 21 August 2000 (“Brahimi Report”). UN Document A/55/305–S/2000/809, § 79. The “legal vacuum” created in Kosovo after the complete withdrawal of Serbian government services had to be filled immediately. The UN Secretary-General reported to the international community that “The [Kosovo Liberation Army] has rapidly moved back into all parts of Kosovo, in particular the south-west, and a large number of Kosovo Serbs have left their homes for Serbia (…) [because of] an increasing number of incidents committed by Kosovo Albanians against Kosovo Serbs. (…) The security problem in Kosovo is largely a result of the absence of law and order institutions and agencies. (…) Criminal gangs competing for control of scarce resources are already exploiting this void. (…) The absence of a legitimate police force (…) will have to be addressed as a matter of priority."Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, 12 July 1999, UN document no. S/1999/799, §§ 5 and 6.

Thus, in efforts to restore law enforcement in Kosovo, the UN decided to deploy more than 4,100 international police personnel to Kosovo, forming what became known as UNMIK Police. However, its deployment was only completed by December 2000. This delay in filling that “legal vacuum” with the deployment of international police took and changed lives of thousands of people, including children and the elderly, most of whom had nothing to do with the armed conflict. Simultaneously, the judicial system was being rebuilt as well. Due to those efforts, already in January 2003 in his report to the UN Security Council on the implementation of the Resolution 1244 (1999), the UN Secretary-General described the police and justice system in Kosovo as “well-functioning” and “sustainable”See: Report of the UN Secretary-General on the United Nations Interim Administration Mission in Kosovo, 29 January 2003, UN document no. S/2003/113, § 28.

Due to its status as an organ of the UN, the Special Representative of the Secretary General (SRSG), and other UNMIK’s top officials are “immune from local jurisdiction in respect of any civil or criminal act performed or committed by them in the territory of Kosovo”, while all staff are “immune from legal process in respect of words spoken and all acts performed by them in their official capacity.See: UNMIK Regulation no. 2000/47, 18 August 2000, On the Status, Privileges and Immunities of KFOR and UNMIK and their personnel in Kosovo, Sections 3.1 – 3.3 // UNMIK Official Gazette [electronic source] – http://www.unmikonline. org/regulations/unmikgazette/02english/Econtents.htm (accessed on 10 March 2015). Because of this, there was no venue for any complaints against the UN, except for the claims for material damage, to be heard. Therefore, in June 2000, UNMIK created the Ombudsperson Institution in Kosovo, with the jurisdiction “to receive and investigate complaints from any person or entity in Kosovo concerning human rights violations and actions constituting an abuse of authority by the interim civil administration or any emerging central or local institution.UNMIK Regulation no. 2000/38, 30 June 2000, On the Establishment of the Ombudsman Institution in Kosovo, Section 3. The roots of this action go back to the agreements reached at NATO conference in Rambouillet, in February 1999 provided, among others, the establishment of such a body.See: Interim Agreement for Peace and Self-Government in Kosovo (Rambouillet Accords), UN Document S/1999/648, Chapter 6, pp. 55-57; the functions of the international Ombudsperson in Kosovo were performed by Mr. Marek A. Nowicki.

In order to further strengthen the existing accountability mechanism to address human rights violations allegedly committed by UNMIK and following outside pressure,See: Venice Commission’s Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, Opinion no. 280 / 2004 of 11 October 2004 // Venice Commission official webpage [electronic source] – http://www.venice.coe. int/webforms/documents/default.aspx?pdffile=CDL-AD(2004)033-e (accessed on 23 November 2015). in 2006 UNMIK established the Human Rights Advisory Panel (the Panel).See: UNMIK Regulation no. 2006/12, 23 March 2006, On the Establishment of the Human Rights Advisory Panel; for more information see: Chinkin C. The Kosovo Human Rights Advisory Panel, 26 January 2012 // Chatham House [electronic source] – https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/ 260112summary.pdf (accessed on 23 November 2015); Balcerzak M., Odpowiedzialność Misji Tymczasowej Administracji ONZ w Kosowie za naruszenia praw człowieka. Uwagi na tle działalności Panelu Doradczego ds. Praw Człowieka, w: Globalne problemy ochrony praw człowieka, (red. E. Karska), Warszawa 2015, s. 277–296. In 2006 the Ombudsperson Institution in Kosovo had lost its jurisdiction over complaints against UNMIK,See: UNMIK Regulation no. 2006/06, 30 June 2000, On the Ombudsman Institution in Kosovo, Sections 1.2, 1.3 and 3.4. as a result the Panel remained the only venue for individual complaints against UNMIK to be heard. Since the territory of Kosovo is not covered by the jurisdiction of the European Court of Human Rights in Strasbourg (ECtHR), or other international juridical bodies, the Panel also serves to address, within its jurisdiction,See: UNMIK Regulation no. 2006/12, Section 2. what has been a legal “black hole” in human rights protection since UNMIK took over Kosovo.See: Chinkin C. The Kosovo Human Rights Advisory Panel. Summary of a Meeting and Discussion, 26 January 2012 // Chatham House [electronic source] – http://www.chathamhouse.org/sites/files/chathamhouse/public/Research/ International%20Law/260112summary.pdf (accessed on 23 November 2015). In consideration of such complaints the Panel bases its work on the European Convention of Human Rights (ECHR) and major international human rights instruments.See: UNMIK Regulation 2006/12, Sections 1–3.

Although the Panel’s recommendations to UNMIK are only of an advisory nature,See: ibid., Section 17. its work is not solely a source of “lessons learned and [bad] practices” for the UN. Its impact is rather multi-dimensional, as individual complainants benefit from it, as their grievances  receive at least a partial closure. At the same time, through its opinions which are made public, the Panel strongly signals that no one, even the world’s largest international organisation, is above the law. Furthermore, the Panel’s jurisprudence largely supplements the body of international human rights law, especially in relation to the violations committed by international and inter-governmental organisations. Eventually, the Panel’s work contributes to post-conflict reconciliation, giving voice to many victims of human rights violations, many of whom had long lost their hope to find justice.

About a half of the Panel’s overall case loadHRAP statistics see at the Panel’s official webpage [electronic source] – http://www.unmikonline.org/hrap/Eng/ Documents/Statistical-summary-eng.pdf (accessed on 23 November 2015). consists of the complaints of alleged lack of investigation by UNMIK into the abductions, disappearances and killings of mostly non-Albanian residents of Kosovo, in violation of Article 2 (procedural) and Article 3 (substantive) of the ECHR. In considering those complaints, the Panel relies on the jurisprudence of the European and Inter-American Courts on Human Rights, as well as the United Nation Human Rights Committee. In particular, the adequacy of the investigative actions undertaken by UNMIK authorities in every specific case is checked by the Panel against the standards of investigation set forth by the ECtHR under the procedural leg of Article 2 of the ECHR.

This article is an attempt to identify and systematise the main challenges in the field of criminal investigation, which international law enforcement specialists faced in Kosovo, but which also commonly affect the investigative process in similar situations in other locations. This is the result of the author’s personal experience working in UNMIK, including in the field of criminal investigation, combined with an overview of the relevant issues identified by the Panel in the cases related to the lack of an adequate investigation.

The concept of the procedural obligations under Article 2 largely emerged from the situations of obvious loss of life in lifethreatening situations, where the investigative material presented to the reviewing experts was so poor, that there were simply no sufficient grounds to assess whether the death was in violation of the obligation to protect life. This concept became a very effective tool to ensure that the authorities would not be able to avoid responsibility under Article 2 through conduct of poor investigation.See, among others: Tanrikulu v. Turkey [GC], no. 23763/94, judgment of 8 July 1999, §§ 69, 87, 96, 109–110, UCHR 1999-IV; Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports of Judgments and Decisions 1998-IV; Finucane v. the United Kingdom, no. 29178/95, § 82-84, ECHR 2003-VIII. Subsequently, Article 2 provisions were also extended to cover cases of disappearances.See, among others: Palić v Bosnia and Herzegovina, no. 4704/04, 15 February 2011; Bazorkina v. Russia, no. 69481/01, 27 July 2006; Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, 18 December 2012.

In general, the investigation of crimes in a post-conflict situation may be considered as a variation of the general concept of criminal investigation in emergency situations. The challenges, which law-enforcement agencies face in a post-conflict period, pre-determine the specifics of the investigative processes and make the situation special per se, thus calling for adjustments to be made to investigative “technologies”. When applied during the investigation of crimes committed in the conflict zones or in post-conflict situations, many of the regular recommendations that normally bring positive results simply don’t work.See: Antonov A.N. Grigorjev V.N. Method for Investigation of the Crimes Committed on the Territory of International Armed Conflicts // Gaps in the Russian Legislation. International Law Journal. Issue 1 / 2008. P. 329-332, ISSN 2072- 3164[electronic source] – http://www.urvak.ru/en/prl_index-eng.htm (accessed on 23 November 2015). 

Even the rapid mass deployment of international police from “all corners of the world” to “save” Kosovo was not able to solve all problems existing on the ground. What remained  a serious issue was the real ability of this UN police force to adequately respond to the overwhelming number of serious crimes committed in the province. Likewise the quality of the investigations conducted by them was brought into question.See e.g.: Decker D.C. Enforcing. Human Rights: The Role of the UN Civilian Police in Kosovo, International Peacekeeping, vol. 13, no. 4, 2006, pp. 502–516. Although “it was imperative for UNMIK Police to establish order and to quickly construct a framework to register and investigate crimes”, the Panel on a number of occasions has mentioned in this respect that “this obligation is not fulfilled simply by the establishment of an adequate framework, but only when it becomes a properly coordinated system that is able to carry out an adequate and effective investigation”.HRAP, Stojković v. UNMIK, no. 87/09, opinion of 14 December 2013, § 164.

Nowadays, the idea of having “rosters” of pre-approved qualified specialists ready for quick deployment to problem zones, in order to minimise this delay, has gained more supporter. For example, as of March 2015, the Justice Rapid Response (JRR) roster contains more than 480 “rapidly deployable experts” of 95 nationalities, who are able to provide “impartial, highly trained professional investigative expertise” in 75 languages, in different fields, where and when it is needed.See: JRR Roster // JRR website [electronic source] – http://www.supportjustice.org/what-we-do/jrr-roster/ (accessed on 23 November 2015). Special training and certification programs are also set up for such purposes. The JRR already reports on 55 missions around the world, where the experts from the Roster were successfully deployed.See: Rapidly Deploying Experts Worldwide – JRR Missions // JRR website [electronic source] – http://www. supportjustice.org/what-we-do/rapidly-deploying-experts/ (accessed on 23 November 2015).

Of course, due respect shall be given to this idea. However, the “net” benefit of it can only be understood if we consider the number of various obstacles which the organizers of such a deployment have to overcome before they actually have someone on the ground. When we speak of a war zone, or of a post-conflict (often a nearly “lawless”) territory, the actual situations are usually far from ideal. In particular, there must be clarity about the requirements for the personnel selected to carry out the mission, in accordance with the particular situation of the location where they are to be deployed. Then the organisers will have to talk to the preselected candidates and convince them to come to a potentially dangerous zone. There is also a multitude of protocol, logistical, transport, communications, security and other arrangements, which need to be taken care of, before the team even heads off to a particular location; such arrangements may take weeks.

Eventually, when the “rapid reaction” or “quick deployment” team arrives at a location, precious time will most probably be lost and with the passing time evidence disappears as well. For example, bringing UN specialists is easier, as they all have the UN “laissez-passer”, recognised by most states. However, not all “rostered specialists” are UN staff, thus simply obtaining a visa may become a problem. There were many instances when specialists were unable to come to Darfur, as their visa applications, although submitted by the UN, were rejected.

Another important question is related to the format in which the discovered evidence will be documented / stored, i.e. which criminal procedure rules, if any, will the specialists apply? Will it be their national law, the law of the host country’s or something else? In the author’s view, the idea of conducting the ground work by rapidly assembled groups of specialists, although great for the purpose of having human violations documented, has been insufficiently developed from the perspective of future criminal proceedings.

Returning to the Kosovo example, let us mention the experience related to the forensic work on location and identification of the mortal remains in Kosovo at the early stages of UNMIK’s  work there. On a number of occasions the SRSG has stated to the Panel that “the collection of evidence of war crimes began (…) in 1999 with independent teams from several countries operating under the loose coordination of the ICTY. A lack of standard operating procedures or centralisation led to problems with the evidence gathered in this phase (…) Even more serious that the shortfall of the forensic standards was the lack of attention paid to the humanitarian agenda of identifying bodies and restituting their remains.E.g.: HRAP, Vitošević v. UNMIK, no. 116/09, opinion of 27 February 2015, §§ 137–138. As a result of the ICTY’s “focused effort to demonstrate that crimes were systematic and widespread (…) as many bodies as possible [were exhumed and autopsied] with little or no identification work (…) less than half of which were identified; furthermore, some of the unidentified bodies exhumed in 1999 by gratis teams were reburied in locations still unknown (…)Ibid. § 138.

Generally, in relation with the whole concept of deployment of international specialists in the rule of law field, some scholars note that “it is easy to deploy ‘rapidly’ but then impossible to ‘rapidly’ understand the dynamics at play on the ground, including the surrounding cultural, economic and legal circumstances.Marshall D. Reboot Required: The United Nations’ Engagement in Rule of Law Reform in Postconflict and Fragile States // A crisis of Legitimacy and the Way Forward. Human Rights Program Series, Harward Law School, 2014, P. 104. Thus, we moved to another problem which negatively affects the properly functioning system of criminal investigations carried out by international teams – the issue of applicable legislation.

In 2000, discussing the challenges before the UN transitional civil administrations (then existing in Kosovo and East Timor) in its report to the UN Security Council, a team of experts led by Mr Lakhdar Brahimi described it as a “pressing issue”, also noting that there the “local judicial and legal capacity was found to be non-existent, out of practice or subject to intimidation by armed elements” and “the law and legal systems prevailing prior to the conflict were questioned or rejected by key groups considered to be the victims of the conflicts”Brahimi Report, cited in the footnote no. 3 above, at § 79. Thus, the very first UNMIK Regulation introducing new legislation began to address this issue,See: UNMIK Regulation no. 1999/01, 25 July 1999, On the Authority of the Interim Administration in Kosovo, Section 3. which was further clarified by UNMIK Regulation no. 1999/24 On the Applicable Law in Kosovo, amended by UNMIK Regulation no. 2000/59.See: UNMIK Official Gazette [electronic source]: http://www.unmikonline.org/regulations/unmikgazette/ 02english/Econtents.htm (accessed on 23 November 2015).

Apart from a clear definition of the applicable law in a legal instrument, the delivery of this information to the mass of specialists in the field is also a problem. Particularly in the first years of UNMIK Police work, there was simply a lack of printed laws, and subsequently – their knowledge by the police. It was deepened by the massive arrival of police personnel from different countries. UNMIK Police induction training included only one-hour class on the applicable criminal and criminal procedure law in Kosovo. Differences in language, culture, practices and experience meant that the learning process could easily take months.

Among more “practical” issues affecting criminal investigation by international teams is a periodic rotation of the specialists. It is the fact that the UN does not have a standing UN army or standing UN police force. Although absolutely normal for all UN peacekeeping operations, the relatively quick change of police personnel on the ground represents another significant negative factor. The term of a single assignment varies between 6 and 24 months. It is usually longer for the judges and prosecutors, as most of them are individually contracted,  and is shorter for the police officers, as they are seconded by their governments and thus depend on their national rules for deployment abroad. Adaptation to investigative work in new conditions and rules takes months. Realistically, the period during which an officer may work really effectively is a half of his/her tour of duty.

The practice dictates that the simple lack of independent and impartial professionals with relevant work experience may nullify all the previous efforts. One of the main reasons to call for international law enforcement organs to be created is to ensure that people do not get convicted based on their ethnicity or previous affiliation; to ensure that there is no discrimination. The international bodies may take exclusive control over the investigations into particularly sensitive war crimes, interethnic crimes and some other categories. On the other hand, from among those who are formally qualified, one need to select only those who are willing to come and are available. Likewise, the issues of conflict of interest and neutrality are extremely important. The usual recommendation here is not to employ people from the former “enemy” states, regardless of how professional they are.

The above-mentioned “rosters” of pre-approved qualified experts, who are ready for deployment on a short notice and ensure prompt, thorough and independent investigation may be considered as one of the approaches to resolve this problem. However, as also mentioned before, there are numerous logistical and other practical obstacles that complicate the process, thus diminishing the overall positive effect of this approach, which exists in theory.

Closely related to the issue of use of international teams is lack of knowledge of the history of the conflict, local specifics (ethnic, cultural etc). It is an imperative that wherever the investigators go they strictly obey the disciplinary rules of the organisation which sends them and the laws and customs of the host country (territory). Otherwise, the local counterpart will not respect and cooperate with them. Worse still – such disrespect may put their mission and their own lives in danger. The problem with lack of legal knowledge may be solved relatively easily, by providing relevant legislation and necessary training to the officers. The situation with respect to the traditions, customs and specifics of relationships within the local community, is much more complicated and requires particular attention. Nevertheless, as a general rule, local customs are to be respected by the international personnel insofar as those are not in direct contradiction with international human rights standards.

The issue of securing witness testimony is an extremely important one. It is also a complex task, which includes aspects of not only finding witnesses, but also convincing them to meet and talk, providing their security and staying in regular contact with them. In post-conflict conditions people often relocate to other places for various reasons, including security concerns. Many become internally displaced persons (IDP) or refugees. In this respect, maintaining contact with them becomes extremely important for the investigative authorities. It is for those authorities to reach out to witnesses, and not vice-versa; moreover, injured parties or witnesses should not be blamed for not providing their contact details to the investigative organs.See: HRAP, Buljević v. UNMIK, case no. 146/09, opinion of 13 December 2013, § 100.

In a post-conflict situation, the territory around the crime scene may become abandoned or populated by “newcomers”, so the typical investigative action of “canvassing” the area in search of eyewitnesses brings little results. Thus, it is imperative that this is done as soon as possible. Likewise, in difficult security conditions, there shall be no delay in recording the witnesses’ statements, as they can leave the area, be threatened in order not to testify or to change their statement/give a false one, be assaulted or killed. When a witness is an IDP or a refugee, it also becomes imperative  to maintain regular contact with him/her, for security and tracking purposes.

In many instances, the only way to convince a witness to testify in a post-conflict situation is to ensure sufficient witness protection. However, there are many examples when even full anonymity cannot guarantee the safety of a witness.See: HRAP, Mladenović v. UNMIK, case no. 99/09, opinion of 26 June 2014, § 200. In Kosovo, the lack of protection of witnesses from threats or intimidation “has been, and remains, one of the greatest challenges for justice authorities”.See: Witness Security and Protection in Kosovo: Assessment and Recommendations, a report by the OSCE Mission in Kosovo and the US State Department, 6 November 2007, p. 5 // OSCE official website [electronic source]: http://www. osce.org/kosovo/28552 (accessed on 23 November 2015). The security measures, which normally would ensure the safety of a witness, “are useless as long as the witness is physically in Kosovo, where everybody knows everybody else. Most witnesses are immediately recognised by the defence when they deliver their testimony, despite all the anonymity measures”.The protection of witnesses as a cornerstone for justice and reconciliation in the Balkans, 29 November 2010, PACE Report, doc. 12440, § 127 // PACE official website [electronic source] – http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=12581&lang=en (accessed on 23 November 2015). The only more or less effective tool is a relocation of the witness to another country, with complete change of identity. However, not many governments are easily convinced to accept such “forced migrants”, who probably have connection to the criminal underworld.

Also, in this respect the language barrier is a major practical issue, which can undermine any investigation and render any tactical recommendation useless. It particularly affects the intelligence work and the interrogation of witnesses and suspects. In addition to all other problems, an investigator must convince a witness that he/she could trust the interpreter, that the information provided will not be misused and leaked. This requires serious work to ensure the interpreters’ loyalty to the job they are doing. However, in many cases the interpreters providing language support to the foreign police officers en masse arriving in Kosovo were not even checked for their language proficiency, let alone made subject to the background checks for any past affiliation, which could undermine their impartiality and compromise the confidentiality of information they might have access to.

Finally, we note that the lack of assistance of the local police is also a strong negative factor in relation to the investigation. In the Kosovo situation, at the early stages of the Mission, there was simply no local police, as Serbia withdrew all police structure in the province. Although the personnel was gradually replaced by international, and later new locals gained expertise to take some functions over, the total loss of archives, data bases and criminal records, as well as yearly-accumulated expertise, was irreplaceable. As already cited above, the SRSG stressed that UNMIK had to build a new Kosovo Police Service from scratch, a long and challenging task, and this work, according to him, is still in progress.See: HRAP, Stojković v. UNMIK, cited in the footnote no. 21 above, at § 99. In Kosovo, when leaving, the Serbian police took with them all relevant documentation, including the databases, thus making even the mere criminal background checks impossible.

Simple insufficient logistics can sometimes cause a serious blow to the activities of the investigative units. There is certainly room for standardization of the approach to procurement. However, the standard solutions should be adjusted, based on careful study of the conditions in which the officers will have to work, paying particular attention to the feedback from those returning from the field. Sometimes, the equipment and supplies prepared for one mission might be totally unsuitable for another, as each has unique characteristics, which should undoubtedly be taken into consideration and reflected in pre-deployment training.

The above-mentioned, as well as other, problems “inhibited the ability of the UNMIK Police to conduct investigations according to the [required] standards.HRAP, Bulatović v. UNMIK, no. 166/09, opinion of 13 November 2014, § 55; Kostić and others v. UNMIK, nos 111/09 et al, opinion of 23 October 2015, § 182. It is clear that those issues should have been given proper consideration at the planning stage. It is true that UNMIK was the first fully executive mission in the history of the UN, particularly in the area of executive law enforcement. It certainly lacked the “concept, planning and implementation [which were] being developed on the ground … [I]t was very challenging task for police managers to establish common practices for optimum results in a high-risk environment.Ibid., § 53.

However, as was discovered by the Panel, the situation in the field of law enforcement in Kosovo was misrepresented to the major international stakeholders. As mentioned above, at the beginning of 2003, the UN SecretaryGeneral characterised the police and justice system in Kosovo was as “well-functioning” and “sustainable”.See: footnote no. 5 above. Nonetheless, shortly after that report, the UNMIK Department of Justice and UNMIK Police locally developed a policy, according to which “due to time, resource and personnel limitations, only certain cases would continue to be investigated and only those cases with a strong likelihood of suspect identification would be kept open.”

Indeed, problems caused by insufficient resources are usually resolved either by preserving those resources or by asking for more. This was clearly a “preservation” policy that prompted suspension of many investigations, which did not meet “the level of either proof, evidence, or suspect identification to remain open”.HRAP, Stevanović v. UNMIK, no 289/09, opinion of 14 December 2014, § 42. In this respect, the Panel expressed its particular concern that this was done, instead of discussing these difficulties in appropriate fora and requesting more resources, “while the situation ‘on the ground’ was described in the UN Secretary-General’s report to the Security Council in a totally different way.Ibid., § 127. In the Panel’s view, it was an indicator of a serious systemic failure, which covered the deficiencies in the functioning of the police and justice system established by UNMIK, in a “clear disconnect between the situation on the ground and the way it was presented to the major stakeholders.Ibid., §§ 112 and 116.

To date, the HRAP has delivered around 240 opinions related to the allegations against UNMIK for improper conduct of criminal investigations into abductions, killings and disappearances (mostly happening after June 1999). In 220 of them, the Panel found violations of the procedural obligations under Article 2 of the ECHR. In addition, in 142 of these cases, the Panel further found that the manner in which the process was handled by UNMIK contributed to the complainant’s distress and mental suffering, in violation of Article 3 of the ECHR.See footnote no. 16 above. The vast majority of the investigations assessed by the Panel were shown to be “perfunctory and unproductive”, commonly affected by “delays in the registration of the cases and lengthy periods of inactivity (…) failure to take basic investigative steps and follow obvious lines of enquiry; lack of coordination among different units of UNMIK Police; lack of regular and meaningful reviews of cases; lack of prosecutorial oversight [and] failure to provide family members with minimum necessary information on the status of the investigation”.See: HRAP, Vitošević v. UNMIK, no. 116/09, opinion of 27 February 2015, § 176 and 214; Folić and others v. UNMIK, nos. 58/09 et al, opinion of 13 November 2015, §§ 140 and 183.

If we do not learn from previous mistakes, future post-conflict investigations risk repeating the mistakes made in Kosovo. If the problems are not envisaged and not timely addressed, the hard work of investigators, however professional they might be, may therefore repeat the grim “pattern of perfunctory and unproductive investigations”, thus only adding to the post-conflict suffering of the civilian population, whom the investigators must serve and protect.

Andriej Antonow jest doktorem prawa specjalizującym się w postępowaniu karnym

i problematyce śledczej. Pochodzi z Rosji, pracuje w Kosowie z przerwami od 2000 r.

Od czerwca 2011 r. jest szefem Sekretariatu w Komisji Doradczej Praw Człowieka UNMIK (HRAP).

Poglądy i opinie wyrażone w tym artykule należą do autora i mogą różnić się od wyznawanych przez

członków HRAP, ONZ lub jakiejkolwiek innej organizacji i w żaden sposób nie są dla nich wiążące.

Pełen przekład na język polski powyższego opracowania,

którego dokonał Łukasz Prusza, dostępny jest na stronie internetowej „Palestry”.

Konsultacja naukowa tłumaczenia z języka angielskiego – Marek Antoni Nowicki

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In English

Śledztwa międzynarodowe o zbrodnie popełnione bezpośrednio po zakończeniu zbrojnego konfliktu. Standardy i praktyka (przykład Kosowa)

Utworzenie w czerwcu 1999 r. Misji Tymczasowej Administracji Narodów Zjednoczonych w Kosowie (UNMIK) oznaczało, że Organizacja Narodów Zjednoczonych (ONZ) miała za zadanie szybko powołać do życia w Kosowie przejściową administrację cywilną, dając w ten sposób początek nowej fazie swojej kilkudziesięcioletniej działalności. Polegała ona w istocie na sprawowaniu administracji na terytorium, na którym „miejscowy aparat prawny i sądowniczy nie istniał, nie działał albo był zastraszany przez zbrojne ugrupowania”. Ta „próżnia prawna”, wytworzona w Kosowie po całkowitym wycofaniu się serbskich służb państwowych, musiała zostać bezzwłocznie wypełniona. (…) W rezultacie, usiłując przywrócić w Kosowie rządy prawa, ONZ postanowiła wysłać tam ponad 4100 funkcjonariuszy policji, tworząc formację, która stała się znana pod nazwą Policja UNMIK. (…)

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