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Transcript of Law on the Specilaist Chambers - Republika e Kosovs ... a.pdf1 Republika e Kosovs Republika Kosovo -...

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    Republika e Kosovs Republika Kosovo - Republic of Kosovo

    Kuvendi - Skuptina - Assembly ___________________________________________________________________________ Law No.05/L-053

    ON SPECIALIST CHAMBERS AND SPECIALIST PROSECUTORS OFFICE

    Assembly of Republic of Kosovo, Based on Article 65 (1) of the Constitution of the Republic of Kosovo, Approves LAW ON SPECIALIST CHAMBERS AND SPECIALIST PROSECUTORS

    OFFICE

    CHAPTER I GENERAL PROVISIONS

    Article 1

    The Scope and Purpose of the Law 1. This Law establishes and regulates the organisation, functions and jurisdiction of the Specialist Chambers and the Specialist Prosecutors Office. 2. Specialist Chambers within the Kosovo justice system and the Specialist Prosecutors Office are necessary to fulfil the international obligations undertaken in Law No. 04/L-274, to guarantee the protection of the fundamental rights and freedoms enshrined in the Constitution of the Republic of Kosovo, and to ensure secure, independent, impartial, fair and efficient criminal proceedings in relation to allegations of grave trans-boundary and international crimes

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    committed during and in the aftermath of the conflict in Kosovo, which relate to those reported in the Council of Europe Parliamentary Assembly Report Doc 12462 of 7 January 2011 (The Council of Europe Assembly Report) and which have been the subject of criminal investigation by the Special Investigative Task Force (SITF) of the Special Prosecution Office of the Republic of Kosovo (SPRK).

    Article 2 Compliance with Article 55 of the Constitution

    Any limitations on fundamental rights and freedoms are undertaken pursuant to Article 55 of the Constitution for the objective and reasonable purposes expressed in this Article, consistent with Chapter II of the Constitution and international standards of justice and due process. These purposes are in the vital interest of Kosovo as an open and democratic society and are in fulfilment of Kosovos international obligations. Consistent with Article 55 of the Constitution, these limitations shall only be imposed to the extent necessary for the fulfilment of these vital purposes.

    CHAPTER II BASIC PRINCIPLES

    Article 3 Foundational Principles

    1. Specialist Chambers shall be attached to each level of the court system in Kosovo: the Basic Court of Pristina, the Court of Appeals, the Supreme Court and the Constitutional Court. The Specialist Chamber of the Constitutional Court shall deal exclusively with any constitutional referrals relating to the Specialist Chambers and Specialist Prosecutors Office. The Specialist Chambers shall be independent in the exercise of their functions. 2. The Specialist Chambers shall adjudicate and function in accordance with,

    a. the Constitution of the Republic of Kosovo,

    b. this Law as the lexspecialis,

    c. other provisions of Kosovo law as expressly incorporated and applied by this Law,

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    d. customary international law, as given superiority over domestic laws by Article 19(2) of the Constitution, and e. international human rights law which sets criminal justice standards including the European Convention on Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights, as given superiority over domestic laws by Article 22 of the Constitution.

    3. In determining the customary international law at the time crimes were committed, Judges may be assisted by sources of international law, including subsidiary sources such as the jurisprudence from the international ad hoc tribunals, the International Criminal Court and other criminal courts. 4. Any other Kosovo law, regulation, piece of secondary regulation, other rule or custom and practice which has not been expressly incorporated into this Law shall not apply to the organisation, administration, functions or jurisdiction of the Specialist Chambers and Specialist Prosecutors Office. This Law shall prevail over any and all contrary provisions of any other law or regulation. 5. The Specialist Chambers shall be supported by a Registry, which will also administer all necessary and auxiliary functions, including detention facilities as provided for by this Law. 6. The Specialist Chambers shall have a seat in Kosovo. As provided for through an international agreement with the Host State, the Specialist Chambers shall also have a seat in the Host State outside Kosovo, but may sit elsewhere on an exceptional basis if necessary in the interests of proper administration of justice. The Specialist Chambers may make special arrangements for testimony or appearances through alternative means at the Judges discretion. 7. As provided for through an international agreement with the Host State, the Specialist Prosecutors Office shall have a seat in the Host State, but may also have a seat in Kosovo. The Specialist Prosecutors Office may perform its functions at the seat of the Specialist Prosecutors choosing or elsewhere, as required to fulfil its mandate effectively. 8. For reasons of the proper administration of justice or security,

    a. the President of the Specialist Chambers, the Specialist Prosecutor, Specialist Counsel or VictimsCounsel may at their discretion invoke a change of venue to the Host State of a trial, any part of a trial or any particular stage or stages of the criminal process under this Law;

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    b. the Specialist Prosecutor, Specialist Counsel, VictimsCounsel, or any other party or person with standing to do so under this Law may file or tender any court papers, filings, documents, motions, applications or other items at the Specialist Chambersseat in the Host State; c. the Specialist Prosecutor or the Presiding Judge of the Specialist Chamber of the Constitutional Court may also at their discretion invoke a change in venue to the host state for the Specialist Chamber of the Constitutional Court so that it also sits, deliberates and receives filings and submissions at the Specialist Chambersseat in the Host State;

    d. in the event of an invocation of a change in venue to the Host State the President of the Specialist Chambers shall issue an administrative decision relocating the proceedings, or any part or phase thereof, to the Host State and shall order all necessary steps to give effect to this decision.

    Article 4 Legal Personality and Capacity

    1. The Specialist Chambers and the Specialist Prosecutors Office shall have full legal and juridical personality. 2. The Specialist Chambers, the Registry and the Specialist Prosecutors Office may enter into arrangements with States, international organisations and other entities for the purpose of fulfilling their mandate or in furtherance of their operations in accordance with this Law, in particular with regard to co-operation, judicial assistance and the service of sentence. 3. The President of the Specialist Chambers, the Registrar and Specialist Prosecutor, or their deputies in their absence, may represent their respective organs and entities in the exercise or undertaking of their functions and entering into necessary arrangements. 4. Before entering into any international treaty with a third state relating to judicial co-operation which would otherwise require ratification under Article 18 of the Constitution, the Specialist Chambers shall seek the agreement of the government of Kosovo.

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    Article 5 Executive Mandate and Operation

    In accordance with the international obligations of the Republic of Kosovo, all the necessary executive mandates, powers and authorities required to operate the Specialist Chambers, its organs and all associated functions under this Law shall be delegated as set out in Law No. 04/L-274.

    CHAPTER III JURISDICTION AND APPLICABLE LAW

    Article 6 Subject Matter Jurisdiction

    1. The Specialist Chambers shall have jurisdiction over crimes set out in Articles 12-16 which relate to the Council of Europe Assembly Report. 2. The Specialist Chambers shall also have jurisdiction over offences under Chapter XXXII, Articles 384-386, 388, 390-407, Chapter XXXIII, Articles 409-411, 415, 417, 419, 421, and Chapter XXXIV, Articles 423-424 of the Kosovo Criminal Code 2012, Law 04/L-082 where they relate to its official proceedings and officials.

    Article 7 Temporal Jurisdiction

    The Specialist Chambers shall have jurisdiction over crimes within its subject matter jurisdiction which occurred between 1 January 1998 and 31 December 2000.

    Article 8 Territorial Jurisdiction

    Consistent with the territorial jurisdiction of Kosovo courts under applicable criminal laws in force between 1 January 1998 and 31 December 2000, the Specialist Chambers shall have jurisdiction over crimes within its subject matter jurisdiction which were either commenced or committed in Kosovo.

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    Article 9 Personal Jurisdiction

    1. The Specialist Chambers shall have jurisdiction over natural persons pursuant to the provisions of this Law. 2. Consistent with the active and passive personality jurisdiction of the Kosovo courts under applicable criminal laws in force between 1 January 1998 and 31 December 2000, and in addition to its territorial jurisdiction set out in Article 8, the Specialist Chambers shall have jurisdiction over persons of Kosovo/FRY citizenship or over persons who committed crimes within its subject matter jurisdiction against persons of Kosovo/FRY citizenship wherever those crimes were committed.

    Article 10 Concurrent Jurisdiction

    1. Within its jurisdiction, the Specialist Chambers shall have primacy over all other courts in Kosovo. 2. At any stage of an investigation or proceedings, the Specialist Chambers or the Specialist Prosecutor may order the