The Kosovo Law Institute (KLI) has requested the Kosovo Assembly not to avoid procedures related to the review of the Draft Law on the State Bureau for Verification and Confiscation of Unjustified Assets.
According to the KLI, between the two parliamentary readings, it should be possible to avoid any possible irregularities in the Draft Law on the Bureau, so that it can pass a possible test in the Constitutional Court.
Initially, in relation to this Draft Law, IKL has long ago emphasized that the Government of the Republic of Kosovo, in violation of its Regulation, has avoided the public consultation process. This by approving and proceeding in the Assembly the Draft Law on the Bureau, without conducting any public consultation process.
IKL, after reviewing the Draft Law on the Bureau, which is expected to be reviewed this Friday in the Assembly, has found that in principle, most of the recommendations of the Constitutional Court's judgment have been addressed. However, there are still some remaining issues, which can easily be addressed between the two (2) readings, so that there are no gaps that jeopardize the constitutionality of the Draft Law on the Bureau.
The first point that needs to be discussed is the majority required for the election of the Director General of the Bureau. Despite the limitation of Article 80.1. of the Constitution, that in principle, all decisions are taken by a simple majority of votes, there are practices where the Venice Commission has emphasized the possibility of determining a higher majority of votes in certain cases. This Commission, in an opinion on Bulgaria (where this issue is also regulated by the Constitution in the same way as in Kosovo), has emphasized that “a national constitutional court usually intervenes when there is a lack of a guarantee, and not when ordinary law provides for a stricter guarantee, as in the present case, which would strengthen the independence and representative character of [the authority competent to initiate civil confiscation].” Therefore, in the present case, the Venice Commission recommended “the reinstatement of the legal definition of the qualified majority in Article 4 [of the Law][1]. On this basis, between two (2) readings, the possibility of establishing by law that the election of the Director and the members of the Commission shall be by a majority of the votes of all deputies should be examined.
Another issue that needs to be addressed is the lack of a specialized Division in the Court of Appeals to handle these cases, while one is set to be established at first instance.
Also, an issue that needs to be addressed is the compensation of the parties in the procedure. The Constitutional Court, in its judgment, referring to the first Opinion of the Venice Commission, recalled that the law must guarantee compensation for damages suffered by the party in cases where the confiscation procedure ultimately proves unsuccessful. Although the Draft Law on the Bureau addresses this issue in Article 64, it does so only in a general manner, referring to the application of legislation on obligations, without clearly specifying the liability for the damage or the types of damage that are compensated. Therefore, between the two readings, the possibility of further clarifying this provision should be considered, so that the right to compensation does not remain merely declarative, but is regulated in a clear and effective manner in the Draft Law on the Bureau itself.
Also, an issue that needs further clarification is the burden of proof in court proceedings. Although the Draft Law on the Bureau provides that the Bureau, before submitting a proposal for confiscation, must meet the civil standard of assessing probabilities and present evidence to the Court in support of its proposal, the current wording leaves room for the burden of proof to be understood as passing almost automatically to the party as soon as the proposal, formally completed, is submitted to the Court. The standard should be that before the burden of proof passes to the party, the Bureau must prove at least prima facie the existence of the unjustified property. For this reason, between the two readings, the possibility should be considered for the Draft Law on the Bureau to clearly specify that the burden of proof does not pass to the party automatically upon the submission of the proposal and its formal completion, but only after the Court finds that the Bureau has met the initial burden to justify the merits of its request. This would strengthen legal certainty and make the balance between the effectiveness of the procedure and the protection of the rights of the parties clearer.
The right of the Director General, and not the Commission, to approve the Code of Conduct for Bureau Officials is also an issue that needs to be carefully considered between the two readings.
Another issue that needs further clarification is the definition of a bona fide buyer. The current wording of the Bureau Draft Law links this status mainly to the price paid and whether the buyer knew or should have known that the property was unjustified. However, this wording remains insufficiently clear. Therefore, between the two readings, the possibility of reformulating this provision more clearly should be considered, so that there is no room for broad or inconsistent interpretations and that the protection of bona fide third parties is regulated in a more precise and practical manner.
Given the fact that this Draft Law has been rejected twice (2) by the Constitutional Court, once on its merits and once for the procedure followed, that it is being reviewed for the third time in the Assembly, and that we are dealing with a Law with a high potential for violating human rights, the Assembly should not under any circumstances pass this Draft Law through an accelerated procedure. All the dilemmas raised should be addressed comprehensively, between the two (2) readings in the Assembly.
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