Jurisprudence

Procedural matters

The earlier case law of the Human Rights Review Panel (Panel) primarily related to preliminary procedural matters such as its jurisdiction in general, its temporal scope, conditions of admissibility and lastly, the exhaustion of remedies prior to the lodgment of complaints with the Panel. The Panel also dealt with specific issues such as the definition of the scope of the acts or omissions attributable to EULEX Kosovo and the identification of continuing and non-continuing violations which allegedly arose from events which occurred prior to the creation of the Panel in October, 2009.  The notion of a continuing violation of human rights was of relevance in the latter context.

As a matter of substantive law, the Panel is empowered to apply human rights instruments as reflected in the EULEX Accountability Concept of 29 October, 2009 on the establishment of the Human Rights Review Panel. Of particular importance to the work of the Panel in this regard are the European Convention on the Protection of Human Rights and Fundamental Freedoms (“ECHR”) and the United Nations International Covenant on Civil and Political Rights, (ICCPR) which set out the minimum standards for the protection of the human rights which are to be guaranteed by public authorities in all democratic legal systems.

Substantive issues

Thereafter the Panel dealt with various substantive issues which arose during its review of cases.  Some of these issues related to Article 8 ECHR (Right to respect for private and family life), Article 9 ECHR (Freedom of thought, conscience and religion), Article 11 ECHR (Freedom of assembly and association) and Article 13 ECHR (Right to an effective remedy). The said substantive issues also related to Articles, 2, 17, 18, 21 and 22 of the 1CCPR, (see, e.g. Case nos. 2012-09 to 2012-12, A, B, C and D Case nos. 2012-19 and 2012-20, H and G Against EULEX Kosovo, (“Vidovdan Cases”) as well as Case no. 2014-37, YB Against EULEX.

The Panel further ruled on Article 2 ECHR (Right to life), Article 3 ECHR (Prohibition of torture and inhuman or degrading treatment) and Article 13 in conjunction with Article 2 ECHR (see, e.g., Case nos. 2014-11 to 2014-17, D.W., E.V., F.U., G.T., Zlata Veselinovic, H.S., and I.R. as well as Case no. 2014-32, L.O. Against EULEX and Case no. 2014-34, Rejhane Sadiku-Syla Against EULEX).

Murdered and missing persons

The latter group of cases concerned murdered and missing persons, the so called “enforced disappearance” cases that came about as a result of the armed conflict in Kosovo in the latter half of 1999 and in early 2000. The complainants in these cases alleged that there were inadequate criminal investigations to establish the facts and that there was a consequent failure to determine the responsibility of the perpetrators.

Case No. 2011-20, X and 115 Others Against EULEX, (“The Roma lead poisoning case”).

The Panel has also reviewed a number of complaints and issued decisions under the terms of Article 13 of the Convention, i.e. the right to an effective remedy. These cases included, inter alia, Case No. 2011-20, X and 115 Others Against EULEX, (“The Roma lead poisoning case”). The complainants were part of a larger group of approximately six hundred Kosovo Roma, Ashkali and Egyptians who were displaced during the armed conflict in Kosovo in 1999. Their homes had been destroyed in 1999 and they were subsequently housed in camps in northern Mitrovica.

These camps had been polluted as they were situated near the Trepce Mines in Mitrovica. The complainants alleged that the pollution resulted in many of them suffering from lead-induced ailments which they contracted during their extended stay in the camps. The Panel held on 22 April 2015 that there had been a violation of Article 13 of the Convention by EULEX Kosovo by virtue of the fact EULEX Kosovo did not open an investigation into the matter before 14 April 2015 when it was still possible to do so. The ability of the complainants to seek and obtain an effective remedy was thereby adversely affected.

These complaints introduced some novel issues and also incorporated circumstances and matters which either had not been previously addressed by human rights accountability mechanisms which monitored international organizations in the executive role and/or where there was a lacuna in relevant case law. In its examination of these complaints, the Panel developed its case law with reference to, inter alia, the ECHR and the ICCPR, referred to above, the case law of the European Court of Human Rights, (ECtHR), and to other international bodies, including the United Nations Human Rights Committee.

Thus the case law developed by the Panel since it became operational in April, 2010 represents its contribution to the development of international standards in human rights protection for international organizations.  It also represents its contribution to the concept of the accountability of international organizations for alleged human rights violations in the exercise of executive authority or quasi-executive authority.

The majority of the more recent complaints which have been filed with the Panel also relate to issues of “enforced disappearances” and the Panel will continue with the development of its jurisprudence in this area of the law as it conducts its reviews of these cases.

Conclusion

The cases listed below include some of the procedural and substantive issues addressed heretofore by the Panel in the review of its cases. The cases have been grouped together under various headings with regard to the main legal issues to which they refer. It will be seen that certain cases may be cited repeatedly if such cases raise different issues under a particular heading. The list of cases is, inter alia, intended to facilitate ease of reference for the reader and to provide the reader with ready access the case law of the Panel.

 

1. JURISDICTION & ADMISSIBILITY

 

1.1   General issues

1.1.1. Scope of reviewing authority of the Panel

B.Y. against EULEX, 2014-06, 27 May 2014, par. 13
Susaja gainst EULEX, 2013-16, 30 August 2013 at pars. 9-10
Zahiti v. EULEX, 2012-14, 7 June 2013 at pars. 33 - 40
Z against EULEX, 2012-06, 10 April 2013, at par. 33
X. and 115 other complainants, 2011-20, 5 October 2012 at par. 55
Hamiti against EULEX, 2012-01,5 June 2012 at par. 16-17
Rexhepi against EULEX,2011-23, 20 March 2012 at pars. 36-37
Sharku against EULEX,2011-19, 20 March 2012 at pars. 20-21
Trajkovic against EULEX, 2011-12, 23 November 2011 at par. 12
Blakqori against EULEX, 2011-06, 23 November 2011 at par. 18
Thaqi against EULEX, 2010-02, 14 September 2011 at pars. 52-64

1.1.2. Accountability concept

Rajovic against EULEX, 2013-25, 9 April 2014 at par. 13
I against EULEX, 2013-01, 27 November 2013, at par.10
Pajaziti against EULEX, 2012-05, 4 October 2012 at par. 9
Zeka against EULEX, 2012-02, 4 October 2012 at par.  21
Rexhepi against EULEX, 2011-23, 20 March 2012 at par. 36
Sharku against EULEX, 2011-19, 20 March 2012 at par.18
Lazic against EULEX, 2011-24,23 November 2011 at par. 18
Gashi v EULEX, 2011-22,23 November 2011 at par. 12
Hoxha against EULEX, 2011-18, 23 November 2011 at par. 19
Smajli against EULEX, 2011-15, 23 November 2011 at par. 14
Martinovic against EULEX, 2011-13, 23 November 2011 at par. 14
S.M. against EULEX, 2011-11, 23 November 2011 at par. 13
Blakqori against EULEX, 2011-06, 23 November 2011 at par. 18
Gecaj against EULEX, 2011-01, 23 November 2011 at par. 48       
Jovanovic against EULEX, 2011-10, 14 September 2011 at par. 31
Rruka against EULEX, 2011-08, 14 September 2011 at par. 10
Thaqi against EULEX, 2010-02, 14 September 2011 at par. 53

    1.1.3. Decision on admissibility without prejudice to the merits

Sadiku-Sula against EULEX, 2014-34, 29 September 2015, conclusion
D.W., E.V., F.U., G.T., Zlata Veselinović, H.S., I.R., 2014-11 to 2014-17, 30 September 2015, conclusion
Becić against EULEX, 2013-03, 1 July 2014, at par. 52
Zahiti v. EULEX, 2012-14, 7 June 2013 at par. 43
A,B,C & D against EULEX (admissibility decision), 2012-09, 10, 11 & 12, 10 April 2013 at par. 62
X. and 115 other complainants, 2011-20, 5 October 2012 at pars. 56-57
W against EULEX (admissibility decision), 2011-07, 5 October 2012 after par. 30

 

1.2. Limits of jurisdiction

1.2.1.Jurisdiction ratione temporis (post 9 December 2008 – date when EULEX became operational)

L.O. against EULEX, 2014-32, 11 November 2015, at pars 48-52
Sadiku-Sula against EULEX, 2014-34, 29 September 2015, at pars 49-52
D.W., E.V., F.U., G.T., Zlata Veselinović, H.S., I.R., 2014-11 to 2014-17, 30 September 2015, at pars 77-81
Berisha against EULEX, 2015-08, 1 March 2016, at par. 14
Thaqi against EULEX, 2010-02, 14 September 2011 at pars. 71-77

    1.2.2. Jurisdiction ratione personae - no reviewing power over UNMIK

Thaqi against EULEX, 2010-02, 14 September 2011 pars. 78-82

1.2.3. No jurisdiction over proceedings taking place outside of Kosovo

Gecaj against EULEX, 2011-01, 23 November 2011 at par. 53

1.2.4. Judicial control over impugned conduct not necessarily  a bar to Panel’s jurisdiction

Thaqi against EULEX, 2010-02, 14 September 2011 at par. 61 (by implication)

1.2.5. Jurisdiction over “discretionary” matters (of the Prosecutor)

Hoxha against EULEX, 2011-18, 23 November 2011 at par. 24

    1.2.6. No connection to EULEX

Shkololli against EULEX, 2015-03, 29 February 2016, at par. 9
Shabani against EULEX, 2014-30, 21 April 2015, at par. 17
Musa against EULEX, 2014-29, 2 February 2015, at par.10
Begolli against EULEX, 2014-27, 2 February 2015, at par. 11
Fazliu against EULEX, 2014-28, 10 November 2014, at par. 10
Kadribasic against EULEX, 2014-09,10 November 2014, at par. 11
Rastelica against EULEX, 2014-07, 27 May 2014, at par. 12
A.Z. against EULEX, 2014-03, 27 May 2014, at par. 14
Vuković against EULEX, 2013-18, 7 April 2014, at par.11
Fejza against EULEX, 2014-20, 26 August 2014 at par. 9.
C.X against EULEX, 2014-08, 26 August 2014 at par. 13.
Kadriu against EULEX, 2013-27, 27 May 2014 at par. 18
Rajovic against EULEX, 2013-25, 9 April 2014 at par. 17
Gashi against EULEX, 2013-20, 26 November 2013, at par. 9
U. against EULEX,2013-19, 27 November 2013 at par. 14-15
Susaja gainst EULEX, 2013-16, 30 August 2013 at pars. 9-10

 

1.3 EULEX personnel and recruitment

1.3.1 No jurisdiction over complaints from or concerning EULEX personnel

Mustafa-Sadiku, 2014-41, 15 June 2015, at par. 16
Beka against EULEX, 2014-23, 10 November 2014, at par. 6
An EULEX employee against EULEX, 2010-13, 14 September 2010 at par. 5

1.3.2. Complaints about recruitment procedures of EULEX

Luizim Gashi against EULEX, 2010-14, 7 December 2010 at par. 7
Pasuli against EULEX, 2010-12, 14 September 2010 at par. 7
Proetel against EULEX, 2010-10, 14 September 2010 at par. 6

 

1.4 Proceedings before Kosovo Courts

1.4.1 Judicial proceedings before Kosovo courts – no involvement of EULEX

Z.A. against EULEX, 2014-36, 29 February 2016, at par. 17
K.P. against EULEX, 2014-31, 21 April 2015, at par. 13
J.Q. against EULEX, 2014-24, 21 April 2015, at par. 10
Kaciu against EULEX, 2014-26, 2 February 2015, at par. 18
Kadribasic against EULEX, 2014-09,10 November 2014, at par. 11
Rastelica against EULEX, 2014-07, 27 May 2014, at pars 12-13
Kahrs against EULEX, 2012-16, 10 April 2013 at par. 35
Hamiti against EULEX, 2012-01, 5 June 2012 at par. 17
Mustafa against EULEX,2011-03, 8 April 2011 at par. 22
Sefa against EULEX, 2010-15, 23 February 2011 at par. 12
Krstic against EULEX, 2010-08, 23 February 2011, pars. 16-17

1.4.2. Judicial proceedings by Kosovo courts – involvement of EULEX/contact with EULEX

Radunović against EULEX, 2014-02, 12 November 2015, at par. 16
Krasniqi against EULEX, 2014-33, 21 April 2015, at par. 20
Ibrahimi against EULEX, 2014-05, 21 April 2015, at par. 23
Selmani against EULEX, 2014-23, 10 November 2014, at par. 12
Rexhepi against EULEX, 2014-19, 10 November 2014, at par. 12
Taraku against EULEX, 2013-26, 27 May 2014, at par. 14
Maxhuni against EULEX, 2013-24, 7 April 2014, at par.12
Gashi against EULEX, 2013-22, 7 April 2014, at par.11
Rahmani against EULEX, 2013-17, 4 February 2014, at par. 17
Zeka against EULEX, 2013-15, 4 February 2014, at par.13
J against EULEX, 2013-04, 4 February 2014, at par. 14
Krapi against EULEX, 2014-22, 26 August 2014, at par. 12.
V against EULEX,2013-23, 27 May 2014 at par. 10.
Kadriu against EULEX, 2013-27, 27 May 2014, at par. 17
Tome Krasniqi against EULEX, 2014-04, 27 May 2014, pars. 14-15
E against EULEX2012-17, 30 August 2013, at pars 25-27
Z against EULEX, 2012-06, 10 April 2013, at par. 31
Halili against EULEX, 2012-08, 15 January 2013, at par. 21
Pajaziti against EULEX, 2012-05, 4 October 2012 at pars. 9-10
Dobruna against EULEX, 2012-03, 4 October 2012 at par. 12
Zeka against EULEX, 2012-02, 4 October 2012 at par.  21
Rexhepi against EULEX, 2011-23, 20 March 2012 at par. 36
Maznikolli against EULEX, 2011-21, 20 March 2012 at par. 15
Lazic against EULEX, 2011-24,23 November 2011 at par. 20
Gashi v EULEX, 2011-22, 23 November 2011 at pars. 13-15
Hoxha against EULEX, 2011-18, 23 November 2011 at par. 19
Smajli against EULEX, 2011-15, 23 November 2011 at par. 14
Martinovic against EULEX, 2011-13, 23 November 2011 at par. 15
S.M. against EULEX, 2011-11, 23 November 2011 at par. 14
Blakqori against EULEX, 2011-06, 23 November 2011 at par. 18
Gecaj Against EULEX, 2011-01, 23 November 2011, at par. 50
Shabani against EULEX, 2011-14, 14 September 2011 at par. 18
Jovanovic against EULEX, 2011-10, 14 September 2011 at pars. 32-34
Rruka against EULEX, 2011-08, 14 September 2011 at pars. 11-13
"SYRI” against EULEX, 2011-05, 14 September 2011 at par. 11
Bahadur and others against EULEX, 2011-02, 14 September 2011 at par. 46-47
Agovic against EULEX, 2010-16, 8 December 2010 at par.21
Ramadani against EULEX, 2010-09, 8 June 2011, par. 28

1.4.3. EULEX membership/staffing of an organ not altering the character of Kosovo judiciary

Krasniqi against EULEX, 2014-33, 21 April 2015, at par. 20
J.Q. against EULEX, 2014-24, 21 April 2015, at par. 10
Ibrahimi against EULEX, 2014-05, 21 April 2015, at par. 23
Kaciu against EULEX, 2014-26, 2 February 2015, at par. 18
Selmani against EULEX, 2014-23, 10 November 2014, at par.12
Rexhepi against EULEX, 2014-19, 10 November 2014, at par.12
Taraku against EULEX, 2013-26, 27 May 2014, at par. 14
Maxhuni against EULEX, 2013-24, 7 April 2014, at par.12
Gashi against EULEX, 2013-22, 7 April 2014, at par.11
Rahmani against EULEX, 2013-17, 4 February 2014, at par. 17
Zeka against EULEX, 2013-15, 4 February 2014, at par.13
J against EULEX, 2013-04, 4 February 2014, at par. 14
Kadriu against EULEX, 2013-27, 27 May 2014 at par. 17
Pajaziti against EULEX, 2012-05, 4 October 2012 at par. 9-10
Dobruna against EULEX, 2012-03, 4 October 2012 at par. 12
Zeka against EULEX, 2012-02, 4 October 2012 at par.  21
Rexhepi against EULEX, 2011-23, 20 March 2012 at par. 36
Maznikolli against EULEX, 2011-21, 20 March 2012 at par. 15
Lazic against EULEX, 2011-24, 23 November 2011 at par. 20
Gashi v EULEX, 2011-22, 23 November 2011 at par. 13
Gecaj Against EULEX, 2011-01, 23 November 2011 at par. 50
Jovanovic against EULEX, 2011-10, 14 September 2011 at par. 33
Rruka against EULEX, 2011-08, 14 September 2011 at par. 12
SYRI” against EULEX, 2011-05, 14 September 2011 at par. 11

    1.4.4. EULEX judges/staff actions which do not constitute exercising executive authority

Z.A. against EULEX, 2014-36, 29 February 2016, at par. 18
Kaciu against EULEX, 2014-26, 2 February 2015, at par. 19
Fazliu against EULEX, 2014-28, 10 November 2014, at par.11
Kadriu against EULEX, 2013-27, 27 May 2014 at par. 18

1.4.5. Proceedings before the Human Rights Advisory Panel of UNMIK

Rajovic against EULEX, 2013-25, 9 April 2014 at par. 7-11

 

1.5. EULEX actions

1.5.1. Reviewing authority and sufficient material connection between acts and EULEX actions

Thaqi against EULEX, 2010-02, 14 September 2011 at pars. 84-85

1.5.2. Competence of the Panel to review acts/omissions of EULEX Police/Prosecutors

L.O. against EULEX, 2014-32, 11 November 2015, at par. 42
Maksutaj against EULEX, 2014-18, 12 November 2015, at pars 38-40
Stanisić against EULEX, 2012-22, 11 November 2015, at par 54
Sadiku-Sula against EULEX, 2014-34, 29 September 2015, at par. 34
D.W., E.V., F.U., G.T., Zlata Veselinović, H.S., I.R., 2014-11 to 2014-17, 30 September 2015, at par. 71
W.D. against EULEX, 2015-13, 1 March 2016, at pars 17-19
Krasniqi against EULEX, 2014-33, 21 April 2015, at pars 15-16
Becić against EULEX, 2013-03, 1 July 2014 at par. 45
B.Y. against EULEX, 2014-06, 27 May 2014, par. 12
I against EULEX, 2013-01, 27 November2013, par. 12
E against EULEX, 2012-17, 30 August 2013, at pars 20-22
Z against EULEX, 2012-06, 10 April 2013, at par. 32-33
Y against EULEX, 2011-28, 15 November 2012 at pars. 34-35
W against EULEX (admissibility decision), 2011-07, 5 October 2012 at par. 20-21
Hoxha against EULEX, 2011-18, 23 November 2011 at par. 22
Martinovic against EULEX, 2011-13, 23 November 2011 at par. 16
S.M. against EULEX, 2011-11, 23 November 2011 at par. 15
Thaqi against EULEX, 2010-02, 14 September 2011 at pars. 52-6

1.5.3. Competence of the Panel to review human rights violations by prosecutors if not addressed by judicial authorities

Krasniqi against EULEX, 2014-33, 21 April 2015, at pars 17-19
Tome Krasniqi against EULEX, 2014-04, 27 May 2014, pars. 14-15
E against EULEX2012-17, 30 August 2013, at pars 22-24
Z against EULEX, 2012-06, 10 April 2013, at par. 34

    1.5.4. Competence of the Panel to evaluate judicial decisions in exceptional cases

K, L, M, N, O, P, Q, R, S and T, 2013-05 to 2013-14, 21 April 2015, at par. 45
Radunović against EULEX, 2014-02, 12 November 2015, at par. 17
Ibrahimi against EULEX, 2014-05, 21 April 2015, at par. 24
Tome Krasniqi against EULEX, 2014-04, 27 May 2014, pars. 14-16

1.5.5. Accountability – Liability for omission or failure to act

I against EULEX, 2013-01, 27 November 2013, at par. 13
H&G against EULEX, 2012-19 & 20, 30 September 2013, at pars. 42-53
A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013 at par. 66
A,B,C & D against EULEX (admissibility decision), 2012-09, 10, 11 & 12, 10 April 2013 at par. 61-62
Sharku against EULEX, 2011-19, 20 March 2012 at pars. 19-20
Thaqi against EULEX, 2010-02, 14 September 2011 pars. 91-94
Kazagic  against EULEX, 2010-01, 8 April 2011, pars. 74-75

1.5.6.      Medical staff’s actions not part of executive mandate

Mustafa-Sadiku against EULEX, 2014-41, 15 June 2015, at par. 18

1.6 EULEX mandate

1.6.1. Limitation of EULEX mandate and power to review

Sharku against EULEX, 2011-19, 20 March 2012 at par. 21

1.6.2. “Executive” aspects of EULEX mandate as a jurisdictional border

Fejza against EULEX, 2014-20, 26 August 2014 at par. 10 (pension issues)
Halili against EULEX, 2012-08, 15 January 2013, at par. 23 (custody over children)
X. and 115 other complainants, 2011-20, 5 October 2012 at pars. 43-53 (medical care, pollution housing matters, protection of environment)
Maznikolli against EULEX, 2011-21, 20 March 2012 at par. 15
Asllani against EULEX, 2011-26, 23 November 2011 (enforcement of Kosovo courts’ judgments not included) at par. 33
Trajkovic against EULEX, 2011-12, 23 November 2011at par. 12 (house search as executive mandate)    
Shabani against EULEX, 2011-14, 14 September 2011 at pars. 16-18 (family law)
Azemi against EULEX, 2011-17, 8 June 2011 at par. 3 (employment not included)
Mirkovic against EULEX, 2011-09, 8 June 2011 sat pars. 14-15 (employment and internal discipline not included)
Gecaj Against EULEX, 2011-01, 23 November 2011 at par. 48

1.6.3. “Executive” mandate and EULEX Judges

Kazagic  against EULEX, 2010-01, 8 April 2011 at par. 34

    1.6.4. Monitoring, Mentoring and Advising (MMA)

Zahiti v. EULEX, 2012-14, 7 June 2013 at pars. 36
Kahrs against EULEX, 2012-16, 10 April 2013 at pars. 26-35

      1.6.5. Executive mandate and attributability

H&G against EULEX, 2012-19 & 20, 30 September 2013, at par. 56
Zahiti v. EULEX, 2012-14, 7 June 2013 at pars. 33 - 40
A,B,C & D against EULEX (admissibility decision), 2012-09, 10, 11 & 12, 10 April 2013 at par. 57-60

 

1.7 Other matters

1.7.1. EULEX acknowledgment of complainant’s rights

Maxhera against EULEX, 2012-04, 4 October 2012 at pars. 12-13

1.7.2. No competence over tax issues

Hoxha against EULEX, 2011-18, 23 November 2011 at par. 20

1.7.3. No reviewing power over private disputes

Taraku against EULEX,  2013-26, 27 May 2014, at par. 13
Sogojeva against EULEX,2012-18, 6 June 2012, at pars 6-8
Gashi v EULEX, 2011-25, 20 March 2012 at pars. 8-9
Rudi against EULEX, 2010-11, 14 September 2010 at par. 6

1.7.4. HRRP no court of appeal

Halili against EULEX, 2012-08, 15 January 2013, at par. 21
Sharku against EULEX, 2011-19, 20 March 2012  at pars. 21

1.7.5. Indirect reviewing authority of the Panel

Rexhepi against EULEX, 2011-23, 20 March 2012 at pars. 37-38

1.7.6. Six-month deadline for the submission of the complaint

Sadiku-Sula against EULEX, 2014-34, 29 September 2015, at pars 44-48
D.W., E.V., F.U., G.T., Zlata Veselinović, H.S., I.R., 2014-11 to 2014-17, 30 September 2015, at pars 91-100
Sula against EULEX, 2015-10, 1 March 2016, at par. 16
Mikić against EULEX, 2014-38, 15 June 2015, at pars 8-9
K.P. againt EULEX, 2014-31, 21 April 2015, at par. 15
Gashi against EULEX, 2013-22, 7 April 2014, at par.10
Krasniqi against EULEX, 2013-02, 30 August 2013, at pars 9-10
Emërllahu against EULEX, 2012-15, 8 April 2013, at par.9
Zahiti against EULEX, 2012-14, 7 June 2013 at pars. 42
Gashi against EULEX, 2012-13, 8 April 2013, at par. 10
Halili against EULEX, 2012-08, 15 January 2013, at par. 25
Y. against EULEX, 2011-28, 15 November 2012 at par. 25-33
Rexhepi against EULEX, 2011-23, 20 March 2012 at pars. 39-42
Gashi v EULEX, 2011-22, 23 November 2011 pars. 16-17
Martinovic against EULEX, 2011-13, 23 November 2011 at pars. 17-18
Trajkovic against EULEX, 2011-12, 23 November 2011 at pars. 13-14
S.M. against EULEX, 2011-11, 23 November 2011 at pars. 16-18
Blakqori against EULEX, 2011-06, 23 November 2011 at pars. 19-20
Thaqi against EULEX, 2010-02, 14 September 2011 at par. 51

1.7.7. Status as ‘victim’

Mustafa-Sadiku against EULEX, 2014-41, 15 June 2015, at par. 14
I against EULEX, 2013-01, 27 November 2013, at par. 17-22
Emërllahu against EULEX, 2012-15, 8 April 2013, at pars 10-13
A,B,C & D against EULEX (admissibility decision), 2012-09, 10, 11 & 12, 10 April 2013 at par. 52-55
Ibishi against EULEX, 2012-07, 15 January 2013 at pars. 6-8
Rexhepi against EULEX, 2011-23, 20 March 2012 at pars. 43-47
Smajli against EULEX, 2011-15, 23 November 2011 at par. 15

1.7.8. Actio popularis

Ibishi against EULEX, 2012-07, 15 January 2013 at par. 7

1.7.9. Ongoing/continuous obligation of EULEX (towards actions of UNMIK)  

Thaqi against EULEX, 2010-02, 14 September 2011 at pars. 83-97, in particular par 88

1.7.10. EULEX and the duty to protect human rights

H&G against EULEX, 2012-19 & 20, 30 September 2013, at pars. 41-53
A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013 at par.50

1.7.11    EULEX not a state - ability to guarantee protection of human rights limited in comparison

L.O. against EULEX, 2014-32, 11 November 2015, at par. 43-45   
Maksutaj against EULEX, 2014-18, 12 November 2015, at par. 54              
K, L, M, N, O, P, Q, R, S and T, 2013-05 to 2013-14, 21 April 2015, at par. 53
A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013 at par. 50

1.7.12    Complaint premature

Radunović against EULEX, 2014-02, 12 November 2015, at pars 20-22
Ibrahimi against EULEX, 2014-05, 21 April 2015, at pars 28-29

1.7.13    Complaint unsubstantiated

K, L, M, N, O, P, Q, R, S and T, 2013-05 to 2013-14, 21 April 2015, at pars. 46-47
W.D. against EULEX, 2015-13, 1 March 2016, at pars 20-22
Berisha against EULEX, 2015-08, 1 March 2016, at pars 15-16
Shkololli against EULEX, 2015-03, 29 February 2016, at par. 9
Zherka against EULEX, 2014-42, 15 June 2015, at par. 14

 

1.8. EULEX Police

1.8.1. Executive powers of the police

A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013 at par. 45
Zahiti v. EULEX, 2012-14, 7 June 2013 at pars. 33 – 38, 40
Kahrs against EULEX, 2012-16, 10 April 2013 at par. 26
Bahadur and others against EULEX, 2011-02, 14 September 2011 par. 39

1.8.2. Planning and implementation of police operations

H&G against EULEX, 2012-19 & 20, 30 September 2013, at pars. 48-53
A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013 at pars. 46-51; 55-61, 64-65

    1.8.3. EULEX as a second responder

H&G against EULEX, 2012-19 & 20, 30 September 2013, at pars. 34
A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013 at par.49

 

 

2. PROCEDURAL MATTERS

 

2.1. Panel composition

    2.1.1. Possibility of sitting in the absence of a member

Hamiti against EULEX, 2012-01, 5 June 2012 at par. 2

2.1.2. Recusal or disqualification of a member of the Panel /Secretariat

X. and 115 other complainants, 2011-20, 5 October 2012 at par. 3
Zeka against EULEX, 2012-02, 4 October 2012 at par. 1
Lazic against EULEX, 2011-24, 23 November 2011 at par. 2
Jovanovic against EULEX, 2011-10, 14 September 2011 at par. 2
Rruka against EULEX, 2011-08, 14 September 2011 at par. 2
SYRI” against EULEX, 2011-05, 14 September 2011 at par. 2

2.1.3. Possibility of decision rendered ‘by majority’

Kazagic  against EULEX, 2010-01, 23 November 2011 after par. 77
Rudi against EULEX, 2010-07, 8 June 2011 after par. 88

 

 2.2. Information, inquiries, submissions

2.2.1. Procedural means to request information

Smajli against EULEX, 2011-15, 23 November 2011 at par. 9

2.2.2. Power of the Panel to inform complainant of the possibility to re-submit complaint

Smajli against EULEX, 2011-15, 23 November 2011 at par. 17

2.2.3. Request for parties’ submissions

Berisha against EULEX, 2011-04, 14 September 2011 at par. 2 and 3
Bahadur and others against EULEX, 2011-02, 14 September 2011 at par. 2 and 4

2.2.4. Possibility of enquiring about procedural steps taken by relevant authorities

Bahadur and others against EULEX, 2011-02, 14 September 2011 at par. 3

2.2.5. Request for information and situation of partial compliance with request

Mehmetaj against EULEX, 2010-03, 14 September 2011 at par. 2

2.2.6. Request from the Panel to review of case file

Thaqi against EULEX, 2010-02, 14 September 2011 at par. 4

2.2.7. Possibility of direct (email) contact with applicant

Luizim Gashi against EULEX, 2010-14, 7 December 2010 at par. 1

2.2.8. Notice to Head of Mission and request for views

Rudi against EULEX, 2010-07, 8 June 2011 at par. 1

 

2.3 Complainant’s issues

2.3.1. Issues of representation of the complainant

Smajli against EULEX, 2011-15, 23 November 2011 at par. 17

2.3.2. Right of complainant to be heard

Berisha against EULEX, 2011-04, 14 September 2011 at pars. 2-3 and 18
Bahadur and others against EULEX, 2011-02, 14 September 2011 at pars. 2-4
Rudi against EULEX, 2010-07, 8 June 2011 at pars. 4-5
Kazagic  against EULEX, 2010-01, 8 April 2011 at pars. 1, 3-4,

2.3.3. Failure of complainant to communicate with Panel and effect thereof – strike out

Hajdari against EULEX, 2014-40, 15 June 2015, at par. 14
Hyseni against EULEX, 2014-21, 10 November 2014, at pars 10-11
Qubreli against EULEX, 2014-01, 25 August 2014, at pars 9-10
Blagić against EULEX, 2012-23, 4 February 2014 at par. 11
Berisha against EULEX, 2011-04, 14 September 2011 at par. 19

2.3.4. Possibility of re-introducing a complaint

Berisha against EULEX, 2011-04, 14 September 2011 at par. 20

 

 2.4. Investigative matters

2.4.1. Proposition of interim measures to HoM (related to investigation)

W against EULEX (admissibility decision), 2011-07, 5 October 2012 after par. 30

2.4.2. Duty to investigate

L.O. against EULEX, 2014-32, 11 November 2015, at pars 46-47, 57-65
Sadiku-Sula against EULEX, 2014-34, 29 September 2015, at pars 38-39
D.W., E.V., F.U., G.T., Zlata Veselinović, H.S., I.R., 2014-11 to 2014-17, 30 September 2015, at par. 88
X and 115 other complainants, 2011-20, 22 April 2015, at par. 67
Halili against EULEX, 2012-08, 15 January 2013, at par. 28
Thaqi against EULEX, 2010-02, 14 September 2011 at pars. 74-77

2.4.3. Duty to keep victims involved/informed

L.O. against EULEX, 2014-32, 11 November 2015, at pars 61-62Stanisić against EULEX, 2012-22, 11 November 2015, at par. 59

2.4.4. Confidentiality of investigations and protection of rights of victims

L.O. against EULEX, 2014-32, 11 November 2015, at pars 72-74

2.4.5. Protection of witnesses in criminal investigation

W against EULEX, 2011-07, 10 April 2013, at pars 34-35, 47-53
Y. against EULEX, 2011-28, 15 November 2012 at pars 38-42

    2.4.6. Accountability and public scrutiny - reasoned decision on termination

Stanisić against EULEX, 2012-22, 11 November 2015, at pars 67-69

2.4.7. Authority of EULEX prosecutors under Law on Jurisdiction

Sadiku-Sula against EULEX, 2014-34, 29 September 2015, at pars 53-63
D.W., E.V., F.U., G.T., Zlata Veselinović, H.S., I.R., 2014-11 to 2014-17, 30 September 2015, at pars 84-90
X and 115 other complainants, 2011-20, 22 April 2015, at pars 60-64

2.4.8. Authority of EULEX prosecutors in “exceptional circumstances” (Art. 7 (a) of Law on Jurisdiction)

Sadiku-Sula against EULEX, 2014-34, 29 September 2015, at par. 62
D.W., E.V., F.U., G.T., Zlata Veselinović, H.S., I.R., 2014-11 to 2014-17, 30 September 2015, at par. 90
X and 115 other complainants, 2011-20, 22 April 2015, at pars 60-64

2.4.9.     Investigations in cases of persons missing/killed during the conflict

Sadiku-Sula against EULEX, 2014-34, 29 September 2015
D.W., E.V., F.U., G.T., Zlata Veselinović, H.S., I.R., 2014-11 to 2014-17, 30 September 2015
L.O. against EULEX, 2014-32, 11 November 2015

2.4.10.     Special Investigative Task Force (SITF) - status vis-à-vis EULEX mission

L.O. against EULEX, 2014-32, 11 November 2015, at pars 66-71

 

 2.5. Follow up on the implementation of recommendations

 2.5.1. Jurisdiction to follow-up on the implementation of recommendations

Stanisić against EULEX, 2012-22, 29 February 2016, at par. 3
Becić against EULEX, 2013-03, 11 November 2015, at par. 2
X and 115 other complainants, 2011-20, 11 November 2015, at par. 3
Zahiti against EULEX, 2012-14, 11 November 2014, at par. 4
H&G against EULEX,  2012-19&20, decision on the implementation of the Panel’s recommendations, 27 May 2014, at par. 3
ABCD against EULEX, 2012-09,10,11&12, decision on the implementation of the Panel’s recommendations, 5 February 2014, at par. 3
W against EULEX, 2011-07, decision on the implementation of the Panel’s recommendations, 26 November 2013, at par. 2 and pars 16-26
Kazagic  against EULEX, 2010-01, decision on the implementation of the Panel’s recommendations, 23 November 2011 par. 1 and pars. 10-13
Rudi against EULEX, 2010-07, decision on the implementation of the Panel’s recommendations, 23 November 2011 par. 1 and pars. 9-10

 2.5.2. Evaluation by the Panel of efforts made to implement its decisions

X and 115 other complainants, 2011-20, 10 January 2017, at pars 45-48
Stanisić against EULEX, 2012-22, 29 February 2016, at pars 7-10
Becić against EULEX, 2013-03, 11 November 2015, at pars 8-13
Zahiti against EULEX, 2012-14, 11 November 2014, at pars 13-26
W against EULEX, 2011-07, decision on the implementation of the Panel’s recommendations, 26 August 2014, at pars 17-19
H&G against EULEX,  2012-19&20, decision on the implementation of the Panel’s recommendations, 27 May 2014 at pars. 10-17
ABCD against EULEX, 2012-09,10,11&12, decision on the implementation of the Panel’s recommendations, 5 February 2014 at pars. 16-28
Kazagic  against EULEX, 2010-01, decision on the implementation of the Panel’s recommendations, 23 November 2011 at pars. 7-10
Rudi against EULEX, 2010-07, decision on the implementation of the Panel’s recommendations, 23 November 2011 at pars. 10-13

    2.5.3. Recommendations not implemented / implemented in part – invitation to reconsider/take further action

X and 115 other complainants, 2011-20, 10 January 2017, at par 45 and conclusions
Zahiti against EULEX, 2012-14, 11 November 2014, conclusion
W against EULEX, 2011-07, 10 April 2013, at pars 22-23

 

2.6. Re-examination of a complaint

2.6.1. Rule 42 and new facts

Kadriu against EULEX, 2013-27, 10 November 2014, at par.7
Y. against EULEX (re-examination), 2011-28, 15 January 2013 at pars. 7-10

2.6.2. Rule 42 and new evidence

Tomë Krasniqi against EULEX, 2014-04, 10 November 2014, at par.13
J against EULEX, 2013-04, 7 April 2014, at pars 6-7
Y. against EULEX (re-examination), 2011-28, 15 January 2013 at pars. 11-15

 

2.7. Other procedural issues

2.7.1. Decision of the Panel proprio motu to protect complainant’s identity

W against EULEX (admissibility decision), 2011-07, 5 October 2012 at par. 5

2.7.2. Joinder of complaints according to Rule 20 of the RoP

K, L, M, N, O, P, Q, R, S and T, 2013-05 to 2013-14, 21 April 2015, at par. 7
H&G against EULEX, 2012-19 & 20, 30 September 2013, at par. 6
A,B,C & D against EULEX (admissibility decision), 2012-09, 10, 11 & 12, 10 April 2013 at par. 8

 

 3. EVIDENTIAL MATTERS

 

3.1. Evidential value of pre-9 Dec 2008 facts

Thaqi against EULEX, 2010-02, 14 September 2011 at pars. 96-97

 

 4. MERITS

 

4.1. Article 8 ECHR

4.1.1.  Violation of Article 8

YB Against EULEX, 2014-37, 19 October 2016

4.2. Article 2 ECHR

4.2.1.  Violation of Article 2

L.O. against EULEX, 2014-32, 11 November 2015, conclusion

4.2.2. No violation of article 2

Y. against EULEX, 2011-28, 15 November 2012 at pars. 36-42
W against EULEX (admissibility decision), 2011-07, 5 October 2012, par.30

4.2.3. Importance of Article 2 ECHR

Thaqi against EULEX, 2010-02, 14 September 2011 at pars. 65-70

4.2.4. Positive obligations under Article 2 ECHR, including duty to investigate

L.O. against EULEX, 2014-32, 11 November 2015, at pars 58-65
Thaqi against EULEX, 2010-02, 14 September 2011 at pars. 68-70

4.2.5. Article 2 and requirement of an effective judicial system

Thaqi against EULEX, 2010-02, 14 September 2011 at par. 69

 

 4.3. Article 3 ECHR

4.3.1. Violation of Article 3

L.O. against EULEX, 2014-32, 11 November 2015, conclusion

4.3.2. No violation of Article 3

W against EULEX, 2011-07, 10 April 2013, pars 36-38

4.3.3. Minimum level of severity

Krasniqi against EULEX, 2013-02, 30 August 2013, at pars 11-13
Halili against EULEX, 2012-08, 15 January 2013, at par. 27
W against EULEX, 2011-07, 10 April 2013, par. 36

4.3.4. Alleged violation not attributable to EULEX

K, L, M, N, O, P, Q, R, S and T, 2013-05 to 2013-14, 21 April 2015, at pars 55-61

 4.4. Article 5 ECHR

4.4.1. No violation of article 5

Y. against EULEX, 2011-28, 15 November 2012 at pars. 43-44

4.4.2. Length of detention issue

Z against EULEX, 2012-06, 10 April 2013, at par. 45-52
Martinovic against EULEX, 2011-13, 23 November 2011 at pars. 15-16

4.4.3. Access to documentation

Krasniqi against EULEX, 2014-33, 21 April 2015, at par. 12
Z against EULEX, 2012-06, 10 April 2013, at pars.  43-44

4.4.4. Complaint manifestly ill-founded          

K, L, M, N, O, P, Q, R, S and T, 2013-05 to 2013-14, 21 April 2015, at par. 47

4.5. Article 6 ECHR

4.5.1. Fair trial rights

Halili against EULEX, 2012-08, 15 January 2013, at par. 20-22
Dobruna against EULEX, 2012-03, 4 October 2012 at pars. 11-12
Rexhepi against EULEX, 2011-23, 20 March 2012 at pars. 37-38 

4.5.2. Length of proceedings and undue delay (as a human rights issue)

Maksutaj against EULEX, 2014-18, 12 November 2015, at pars 57-68
S.M. against EULEX, 2011-11, 23 November 2011 at par. 14
Kazagic  against EULEX, 2010-01, 8 April 2011 at par. 77
Krstic against EULEX, 2010-08, 23 February 2011 at par. 15

4.5.3. Execution of a judgment as forming part of the right to a fair trial

Rastelica against EULEX, 2014-07, 27 May 2014, at par. 11
Asllani against EULEX, 2011-26, 23 November 2011 at par. 35

4.5.4. Practical and effective rights and duty of authorities to act in good time

Maksutaj against EULEX, 2014-18, 12 November 2015, at pars 64-65
Kazagic  against EULEX, 2010-01, 8 April 2011, par. 68

4.5.5. Uncertainty and effective enjoyment of right

Kazagic  against EULEX, 2010-01, 8 April 2011, par. 69 and pars. 71-72

4.5.6. Competence and lawfulness of administrative bodies to adjudicate on issues of rights (if full judicial review)

Rudi against EULEX, 2010-07, 8 June 2011, pars. 87-88

4.5.7. Judicial review of administrative decisions and requirement of fairness

Rudi against EULEX, 2010-07, 8 June 2011, par. 88

4.5.8. No right to prosecution

Kazagic  against EULEX, 2010-01, 8 April 2011, par. 42-43

4.5.9. Execution of judgment and access to justice

Kazagic  against EULEX, 2010-01, 8 April 2011;

4.5.10. Access to justice and its limitations

Radunović against EULEX, 2014-02, 12 November 2015, at pars 18-19
Ibrahimi against EULEX, 2014-05, 21 April 2015, at pars 25-27
Kazagic  against EULEX, 2010-01, 8 April 2011, pars.61-62 and par. 76

 

 4.6. Article 8

4.6.1. No violation of Article 8

Stanisić against EULEX, 2012-22, 11 November 2015, at pars 60-61
Krlić against EULEX, 2012-21, 26 August 2014, at pars 24-29
Y. against EULEX, 2011-28, 15 November 2012 at pars. 36-42

    4.6.2. Violation of Article 8

L.O. against EULEX, 2014-32, 11 November 2015, conclusion
H&G against EULEX, 2012-19 & 20, 30 September 2013, at pars 56 et seqq.
A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013 at pars. 53-61, 65
W against EULEX, 2011-07, 10 April 2013, at pars 39-55

    4.6.3. Scope of Article 8

Stanisić against EULEX, 2012-22, 11 November 2015, at par. 58

    4.6.4. Interference with complainant’s rights under Art. 8 not in accordance with law

W against EULEX, 2011-07, 10 April 2013, at pars 40-44

4.6.5. Legitimate aim

W against EULEX, 2011-07, 10 April 2013, at par. 45

    4.6.6. Proportionality of interference

W against EULEX, 2011-07, 10 April 2013, at pars 46-52

4.6.7. Positive obligations under Article 8

Stanisić against EULEX, 2012-22, 11 November 2015, at par. 59
Krlić against EULEX, 2012-21, 26 August 2014, at par. 25

 

4.7. Article 9

4.7.1.Violation of Article 9

H&G against EULEX, 2012-19 & 20, 30 September 2013, at parr. 56 et seqq
A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013 at pars. 53-61, 65

 

4.8. Article 11

4.8.1. Violation of Article 11

H&G against EULEX, 2012-19 & 20, 30 September 2013, at pars 56 et seqq
A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013 at pars. 53-61, 65

 

4.9. Article 13

 4.9.1. Violation of Article 13

L.O. against EULEX, 2014-32, 11 November 2015, conclusion
Stanisić against EULEX, 2012-22, 11 November 2015, at par. 73
X and 115 other complainants, 2011-20, 22 April 2015, at par. 67
Becić against EULEX, 2013-03, 12 November 2014, at pars 58-63
A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013 at pars. 66-67

4.9.2. Obligation of EULEX to provide adequate legal remedies

Zahiti v. EULEX, 2012-14, 7 June 2013 at pars. 40

4.9.3. Obligation to record and register complaints on allegations of violations of rights

Becić against EULEX, 2013-03, 12 November 2014, at pars 56 and 60

4.9.4. Kosovo authorities’ actions/competence not absolving EULEX from own obligation

Becić against EULEX, 2013-03, 12 November 2014, at par. 59

4.9.5. Failure to investigate alleged violations

X and 115 other complainants, 2011-20, 22 April 2015, at pars 62-67

4.9.6. Existence of breach of another provision not a prerequisite for the application of Art.13 (arguable claim)

Stanisić against EULEX, 2012-22, 11 November 2015, at par 62

 4.10. Article 1 of Protocol 1 ECHR

4.10.1. Right to property and possessions, including lawfulness of restrictions thereto

Dobruna against EULEX, 2012-03, 4 October 2012 at pars. 11-12
Rudi against EULEX, 2010-07, 8 June 2011 at pars. 70-84
Kazagic  against EULEX, 2010-01, 8 April 2011 at pars.63-72

4.10.2. Pending litigation and legitimate expectation of ownership

Rudi against EULEX, 2010-07, 8 June 2011 at pars. 61-82

4.10.3. Refusal to obey court order and interference with right of property 

Rudi against EULEX, 2010-07, 8 June 2011 at pars. 76 and 80

 

 4.11. General issues

4.11.1. Requirement of good governance on the part of the authorities

Rudi against EULEX, 2010-07, 8 June 2011 at par. 74

 4.11.2. Limitation of rights and right to reasoned decisions

Rudi against EULEX, 2010-07, 8 June 2011 at par. 78

 

 5. REMEDY

 

 5.1. Possibility for the Panel to identify a “preferred” course of action

Rudi against EULEX, 2010-07, 8 June 2011, par. 86

5.2. Recommendations for relief

L.O. against EULEX, 2014-32, 11 November 2015, conclusion
Maksutaj against EULEX, 2014-18, 12 November 2015, conclusion
X and 115 other complainants, 2011-20, 22 April 2015, conclusion
Stanisić against EULEX, 2012-22, 11 November 2015, conclusion
Becic against EULEX, 2013-03, 12 November 2014, conclusion
Zahiti against EULEX, 2012-14, 4 February 2014, conclusion
W against EULEX, 2011-07, 10 April 2013, conclusion
Kazagic  against EULEX, 2010-01, 8 April 2011, conclusion
Rudi against EULEX, 2010-07, 8 June 2011, conclusion

5.3. Acknowledgment of violation of rights as remedy

L.O. against EULEX, 2014-32, 11 November 2015, conclusion
Maksutaj against EULEX, 2014-18, 12 November 2015, conclusion
Stanisić against EULEX, 2012-22, 11 November 2015, conclusion
Zahiti against EULEX, 2012-14, 4 February 2014, conclusion
H&G against EULEX, 2012-19 & 20, 30 September 2013, conclusion
A,B,C & D against EULEX, 2012-09, 10, 11 & 12, 20 June 2013, conclusion
W against EULEX, 2011-07, 10 April 2013, conclusion      
Rudi against EULEX, 2010-07, 8 June 2011, conclusion

5.4. Failure to implement interim measures

W against EULEX (merits), 2011-07, 10 April 2013, at pars 22-23