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Resolution 1739 (2010)
The situation in Kosovo* and the role of the Council of Europe
1. Since the unilateral declaration
of independence of 17 February 2008, the Kosovo institutions consider themselves
as the sovereign and legitimate authorities of Kosovo and have taken
steps to affirm Kosovo’s statehood. Sixty-nine members of the United
Nations have recognised the independence of Kosovo. However, the
question of compliance of the unilateral declaration of independence
with international law is being examined by the International Court
of Justice, following a request for an advisory opinion made by
the United Nations General Assembly.
2. The United Nations Interim Administration Mission in Kosovo
(UNMIK), set up by United Nations Security Council Resolution 1244
(1999), continues to be present in Kosovo, even if its staff has
been considerably reduced and the scope for exercising executive
functions has shrunk. It has been joined by the European Union Rule
of Law Mission in Kosovo (EULEX), also acting under the aegis of
Resolution 1244, whose main mandate is to monitor, mentor and advise
the Kosovo institutions in the areas of the judiciary, customs and
police. EULEX also holds an executive mandate in addressing war
crimes as well as serious or organised crimes.
3. The Council of Europe applies a policy of status-neutrality
towards Kosovo and recognises the continued validity of United Nations
Security Council Resolution 1244. However, 33 of its member states
have recognised Kosovo as a sovereign and independent state.
4. The Parliamentary Assembly is convinced that, in the present
circumstances, the focus of its attention as regards Kosovo should
not be on status but on standards. In particular, it believes that,
irrespective of its status, Kosovo should be a safe place for all
those who live in it and a place where standards of democracy, the
rule of law and human rights of an equivalent level to that upheld
by the Council of Europe are fully enforced.
5. In this context, the Assembly welcomes the increased level
of security in Kosovo, as recognised by international actors on
the ground, and the decrease in the number of interethnic incidents.
It stresses, however, the need to closely monitor the security situation
in Kosovo’s northern municipalities, which remains volatile. It
also regrets that, throughout Kosovo, different communities live
separately, with a negligible level of interaction, and that interethnic
dialogue and reconciliation are still objectives to attain.
6. The Assembly expresses deep concern about the poor respect
for the rule of law in Kosovo, which affects the everyday lives
of all its inhabitants, irrespective of the community they belong
to, and their trust in the political system. It also hampers good
governance, economic development and, in the long term, the prospects
of European integration.
7. Despite a significant legislative effort to reform the administration,
the judiciary and other key sectors, much needs to be done to consolidate
the democratic functioning of the institutions, improve political
stability and ensure a level of governance that would bring Kosovo
in line with Council of Europe standards.
8. The participation of all Kosovo communities in the political
system remains a major challenge, despite the fact that Kosovo Serbs
living south of the Ibar River are more and more prepared to find
a modus vivendi with the Kosovo
authorities, as indicated by their increased turnout during the
November 2009 local elections in Kosovo. In addition, some communities,
such as Kosovo Serbs and Roma, Ashkali and Egyptians (RAE), continue
to face discrimination and practical difficulties in the exercise
of their rights and freedoms.
9. The Assembly notes that the Kosovo Constitution incorporates
in domestic law the main international human rights instruments,
including the European Convention on Human Rights (ETS No. 5), the
Framework Convention for the Protection of National Minorities (ETS
No. 157) and the United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, and that the
Government of Kosovo has adopted the Human Rights Strategy and Action
Plan 2009-2011. The Assembly, however, recalls that the incorporation
of these instruments per se cannot be a guarantee of effective human
rights protection if it is not backed by a firm political commitment
to ensure implementation. Finally, the Assembly recalls that it
has always expressed the hope, in its Resolutions 1375 (2004), 1453 (2005), 1417 (2005) and 1595 (2008), that
access to the European Court of Human Rights be guaranteed for the
whole population of Kosovo.
10. In the light of these considerations, the Assembly calls on
EULEX, UNMIK and the Kosovo institutions to strengthen their actions
aimed at enhancing the rule of law in Kosovo, in particular by:
10.1. taking public stances to condemn
corruption, including in the political system;
10.2. introducing without further delay comprehensive legislation
on public procurement addressing the present legal and practical
weaknesses;
10.3. taking, without delay, concrete measures, in particular
of a legislative nature, to improve the functioning of the judiciary,
notably to reinforce its efficiency, competence and ethics and to
guarantee its independence.
11. The Assembly encourages the European Union to:
11.1. continue its policy of diversity
on status and unity on engagement, while ensuring a European perspective
for Kosovo, in the context of the Western Balkans;
11.2. strengthen its EULEX mission by:
11.2.1. improving
its public image in Kosovo, through a more developed and inclusive communication
policy;
11.2.2. reinforcing its presence and role in the north of Kosovo;
11.2.3. ensuring that the EULEX police and justice system is adequately
funded, staffed and resourced in order to effectively address the
legacy of impunity for war crimes and other serious interethnic
crimes;
11.3. ensure the effectiveness of the recently established independent
control mechanism (Human Rights Review Panel) by ensuring that it
has the appropriate human, financial and juridical resources to carry
out its mission to review and, if need be, help to redress human
rights violations;
11.4. take into account any future opinions issued by the European
Commission for Democracy through Law (Venice Commission) on mechanisms
to review the compatibility of acts of UNMIK and EULEX with human
rights standards in Kosovo.
12. The Assembly invites the United Nations to:
12.1. ensure that UNMIK’s latest Administrative
Direction No. 2009/1 of 17 October 2009 on the procedure before
the Human Rights Advisory Panel does not undermine the work of this
organ, and in particular the principles of legal certainty and fairness
of proceedings;
12.2. take into account any future opinions issued by the Venice
Commission on mechanisms to review the compatibility of acts of
UNMIK and EULEX with human rights standards in Kosovo.
13. The Assembly calls on the authorities in Pristina and Belgrade
to:
13.1. adopt a constructive and
pragmatic attitude in trying to solve the practical problems affecting Kosovo
Serbs and other minority communities in or from Kosovo, in particular
as regards the issuance of documents, the recognition of the validity
of documents (such as identity cards, passports, driving licences
and diplomas) and the availability of energy supply;
13.2. make further efforts in order to facilitate the recognition
of property rights and the restitution of properties to their legitimate
owners or, if this is not possible, the provision of equivalent
compensation, along the lines set out in Assembly Resolution 1708 (2010) on
solving property issues of refugees and internally displaced persons,
and consistent with the case law of the European Court of Human
Rights;
13.3. establish an inclusive dialogue with the Kosovo Serb civil
society in the north of Kosovo, also outside formal structures;
13.4. continue to co-operate in the framework of the activities
of the Working Group on Missing Persons and in the Reconstruction
Implementation Commission (RIC) and establish dialogue on other
issues of common concern;
13.5. ensure full co-operation with the EULEX War Crimes Investigation
Unit and the International Criminal Tribunal for the former Yugoslavia;
13.6. take a flexible approach in the context of regional co-operation
initiatives in order to facilitate the participation of their representatives,
irrespective of status-related considerations;
13.7. be proactive in promoting dialogue and reconciliation
between communities, in policy and public discourse.
14. The Assembly calls on the Kosovo institutions to:
14.1. ensure full co-operation with
EULEX in the context of investigations into serious or organised crime
and war crime cases;
14.2. ensure effective protection of witnesses in relation to
these investigations by enacting legislation in this respect without
delay;
14.3. fully co-operate with the Kosovo anti-corruption agency,
reinforce its independence and the professionalism of its staff,
allocate adequate resources to it and ensure follow-up to its recommendations;
14.4. take fully into account the multi-ethnic character of
Kosovo, in particular by:
14.4.1. scrupulously implementing
the legislation on the rights of minorities, decentralisation and
minority languages;
14.4.2. putting in place a balanced, impartial and pluralistic
common system of teaching history;
14.4.3. creating the socio-economic conditions for the safe return
and full integration of individuals from minority communities into
society, including displaced persons and returnees;
14.4.4. promoting the participation of individuals from minority
communities in the political system and the public sphere;
14.4.5. taking resolute action against discrimination on ethnic
grounds, in both the public and private sphere;
14.4.6. publicly condemning interethnic crimes and instructing
the police to keep specific statistics on these crimes, as well
as to conduct thorough investigations to ensure that authors of such
crimes are charged and actually punished;
14.5. ensure effective adherence to international human rights
instruments incorporated in domestic law, in particular the European
Convention on Human Rights, the Framework Convention for the Protection
of National Minorities and the United Nations International Convention
on the Rights of the Child of 20 November 1989;
14.6. consider incorporating in domestic law additional Council
of Europe conventions, with a view to adopting Council of Europe
standards, inter alia, the
European Social Charter (ETS No. 35) and the European Social Charter
(revised) (ETS No. 163);
14.7. ensure the independence of the media and promote the role
of the media as a catalyst of interethnic dialogue and reconciliation,
in particular by:
14.7.1. restoring an independent budget
for the public broadcaster RTK;
14.7.2. ensuring the independence of the board of RTK;
14.7.3. promoting the production, distribution and broadcasting
of television and radio programmes in minority languages, especially
Kosovo-wide;
14.7.4. supporting the efforts of media professionals to produce
television and radio programmes, as well as written articles, portraying
the situation of different communities in different parts of Kosovo;
14.8. take steps to address the situation of women and promote
gender equality, in particular by:
14.8.1. taking resolute
action to fight against trafficking in human beings;
14.8.2. introducing measures and programmes to address the situation
of victims of trafficking and facilitate their reintegration into
society;
14.8.3. supporting or organising public campaigns against domestic
violence;
14.8.4. taking appropriate measures to promote the economic independence
of women;
14.8.5. combating discrimination against women in all fields,
including in the context of inheritance law and practice and other
civil cases, such as divorce, separation and custody of children;
14.8.6. ensuring the investigation and prosecution of war crimes
involving sexual violence and guaranteeing access to reparations
for survivors;
14.9. take urgent steps to permanently relocate the Roma population
of the camps of Cesmin Lug and Osterode Cesmin, which are heavily
contaminated by lead, and provide medical treatment to those whose
health has been affected, as also recommended by the Council of
Europe Commissioner for Human Rights.
15. The Assembly calls on the Serbian authorities to:
15.1. eliminate all practical obstacles
for those displaced persons who wish to return, in particular as regards
access to information, and recognition and transmission of documents,
including cadastral information and property certificates;
15.2. set up appropriate programmes to ensure the integration
in Serbia of displaced persons from Kosovo who do not wish to or
cannot go back.
16. The Assembly calls on Council of Europe member states to:
16.1. refrain from forcibly returning
to Kosovo individuals who might still be in need of international protection
according to the relevant guidelines of the United Nations High
Commissioner for Refugees;
16.2. take into consideration Kosovo’s implementation of the
reintegration strategy and its capacity to sustain returns when
deciding whether to return individuals to Kosovo and provide financial
and technical assistance to the Kosovo authorities to assist with
the implementation of that strategy.
17. In order to enhance the Council of Europe’s role in Kosovo,
the Assembly:
17.1. encourages the
Council of Europe Commissioner for Human Rights to continue his
activities as regards Kosovo;
17.2. invites the Secretary General of the Council of Europe
to convey to the Organisation’s Secretariat that direct working
contacts with the Kosovo authorities, at all levels, are possible
when justified by the need to ensure the smooth implementation of
Council of Europe activities which respect status neutrality.
18. In order to contribute to the consolidation of the democratic
functioning of Kosovo institutions, the Assembly:
18.1. encourages Kosovo political
parties to:
18.1.1. introduce rules on their internal democratic
functioning;
18.1.2. promote gender equality in their structures, leadership
and electoral lists;
18.1.3. favour multi-ethnic membership, leadership and electoral
lists;
18.2. resolves to initiate a dialogue with representatives of
the political forces elected to the Kosovo Assembly on issues of
common interest, while taking into account the legitimate interests
and concerns of Serbia and ensuring conformity with United Nations
Security Council Resolution 1244.