Page:SECOND ANNUAL REPORT 2001 – 2002.pdf/13



At the end of the previous reporting period, the Ombudsperson issued Special Report No. 3 on the Conformity of Deprivations of Liberty under `Executive Orders' with Recognised International Standards (Special Report No. 3). In this Special Report, the Ombudsperson found that deprivations of liberty imposed under 'Executive Orders' or any other form of executive instruction, decree or decision issued by the Special Representative of the Secretary General of the United Nations (SRSG) did not conform with recognised international standards. He found that any such deprivation of liberty could not be considered to be lawful in the sense of para. 1 of Article 5 of the European Convention on Human Rights, that the absence of judicial control over deprivations of liberty imposed under Executive Orders constituted a violation of paras. 3 and 4 of Article 5 of the Convention and that the lack of an enforceable right to compensation for unlawful deprivations of liberty constituted a violation of para. 5 of Article 5.

The Ombudsperson recommended that the SRSG immediately cease the practice of issuing Executive Orders imposing on any individual in Kosovo a deprivation of liberty. The Ombudsperson further recommended that the SRSG, no later than 20 July 2001, convene one or more panels composed of international judges to review, on an urgent basis, the lawfulness of detentions of individuals currently deprived of their liberty under Executive Orders, such review to conform with the requirements of Article 5 of the European Convention on Human Rights. The Ombudsperson also recommended that the SRSG should undertake to comply with decisions on deprivations of liberty taken by the judicial panels convened in accordance with the recommendations.

The Ombudsperson also recommended that the SRSG, no later than 31 August 2001, promulgate a Regulation setting forth the legal bases for compensation claims for unlawful deprivations of liberty and proper judicial proceedings in this respect and, on the date of its entry into force, disseminate it through all appropriate channels in all languages widely used in Kosovo. The Ombudsperson further recommended that the new Regulation should be distributed to all persons who have been deprived of their liberty under Executive Orders issued by the SRSG and to all judges, judicial officers or others exercising judicial authority in Kosovo.

On 25 August 2001, the SRSG issued UNMIK Regulation 2001/18 on the Establishment of a Detention Review Commission for Extra-judicial Detentions Based on Executive Orders.

On 12 September 2001, the Ombudsperson issued Special Report No. 4. At the beginning of this Report, the Ombudsperson noted that some aspects of UNMIK Regulation 2001/18 apparently were intended to address concerns reflected in one of the recommendations the Ombudsperson made in Special Report No. 3. The Ombudsperson found, however, that UNMIK Regulation 2001/18 on the Establishment of a Detention Review Commission for Extra-judicial Detentions Based on Executive Orders (25 August 2001) did not constitute an adequate response to the recommendations contained in that Report. The Ombudsperson also found that the mechanisms and procedures to be established under Regulation 2001/18 did not comply with the international human rights standards set forth in para. 4 of Article 5 of the European Convention on Human Rights.

In Special Report No. 4, the Ombudsperson reiterated the recommendations of Special Report No. 3.

The Ombudsperson has received no response to either Special Report No. 3 or Special Report No. 4.