Balancing the Scales
Legal disputes between Serbia and Kosovo affect the everyday lives of thousands in both countries. Amid ongoing political tensions, YUCOM, a human rights NGO, is working to promote bilateral judicial cooperation.
A man living in Serbia wanted to claim an inheritance from his mother, who lived in Kosovo. To prove her passing to the Serbian authorities, he used her Kosovar death certificate. His effort was in vain. Serbia does not recognize most Kosovar documents, leaving the man with no acceptable proof of his mother’s death. Left with no choice, he has reported her as missing. He is still waiting for her demise to be officially recognized.
What seems like a cruel and Kafkaesque bureaucratic case is just one of many examples of the legal troubles regularly faced by people with ties to Serbia and Kosovo. Problems include mutual non-recognition of driver's licenses, difficulties with cross-border divorces and child custody arrangements, unresolved property issues, confusion over court jurisdictions, and the more well-known dispute over car license plates, which has led to several military clashes.
The legal friction is part of the ongoing political dispute between Serbia and Kosovo, which began with the latter’s 2008 declaration of independence from the former. Serbia, however, continues to claim sovereignty over Kosovo.
The dispute has led to several legal challenges, with both countries claiming jurisdiction over various areas of law and policy. Two legal systems have confused and unsettled Serbs and Kosovars, who are regularly unable to determine which system applies in a given case. The turmoil complicates the ability to assert one’s rights.
“In all possible aspects of an ordinary person's life, if you are a Serb from Kosovo who still has ties to Serbia, or vice versa, there are so many problems," says Dragiša Ćalić, legal adviser at the Lawyers' Committee for Human Rights, or YUCOM, a Serbian NGO that monitors legal issues related to the legal obscurities between the neighboring countries.
Brokered by the European Union, the Brussels Agreement of 2013 between Serbia and Kosovo aimed to normalize bilateral relations. It was seen as an important step toward improving ties and advancing both countries’ integration into the EU. Its implementation, however, remains incomplete.
YUCOM has monitored and reported on the agreement’s judicial provisions since 2019. The NGO is the first to undertake such work. “There was close to zero information about how the judiciary is dealing with … cases or whether the integration is functioning,” notes Jovana Spremo, a YUCOM advisor on EU-related policies.
For their reporting, YUCOM staff spoke with experts including representatives of both countries’ judiciaries, such as judges and prosecutors, and representatives of civil society organizations. Their research uncovered that access to justice was a major challenge. It was, in fact, insufficient, as was respect for human rights more broadly. The report noted this in its conclusion.
“There is a group of citizens who are left in the middle of the systems. These citizens really don't care in which system their problems will be dealt, but they just want their problems to be solved,“ Spremo says. “Things are not working as they are now. We need more systematic monitoring and recommendations on how to improve it, because in this state of play the only ones who are not seeing any benefit are the citizens.”
A final agreement between Serbia and Kosovo is urgently needed, Ćalić argues. Even if mutual recognition of legal systems remains unlikely, a clear delineation of responsibilities between the two judiciaries could be a good solution, Ćalić suggests. He also sees the need for international monitoring of implementation. “Only in that way they can get the full picture of who is not doing their part of the job. As it is now, this is not helping anyone. It’s just a game, where Kosovo is seen as taking care of Kosovo’s independence, and Serbia is seen as taking care of Kosovo staying in Serbia.”
The Lure of Brussels
Serbia, as a candidate for EU membership, has an important reason for finding common ground with its neighbor. If it is to enter the bloc, the country must implement a wide range of political, economic, and legal reforms so that its laws and policies align with the EU’s. Judicial reform is key since the EU insists membership depends on normalized relations with Kosovo.
To assist the EU accession process, YUCOM coordinates a civil society working group to monitor progress in human rights, rule of law, and judicial independence. The group’s work includes presenting, at least twice a year, recommendations to the Serbian justice ministry for addressing the most acute issues of concern. Unfortunately, the ministry has accepted few recommendations. “Last year we had 12 recommendations. So far, one and a half of them have been implemented: improved transparency and inclusion … and changes to the law on access to information,” Spremo notes.
The most important recommendation, however, is prioritizing implementation over the mere adoption of laws. “They make progress in [their] EU access [by] overproducing the legal framework. So, if the EU says this year you have to pass 20 laws, they'll pass 22. In the process, they will abuse procedures wherever they can. They will adopt these laws, good or bad, if they set the intention and that's it. They have no real effect and no implementation,” Spremo adds. This means that Serbia’s progress toward EU membership in the last five years is mainly in the adoption of laws or policies, not in actual change. “You can have the best law ever, but if it's not implemented properly, it's useless. This is a major problem here because, in practice, in the field, you actually see the will for changes.”
Rule of law will continue to suffer if more is not done to ensure that laws are implemented and enforced in a timely and effective manner. This will sow more confusion, hindering Serbia’s ability to address current and future challenges, rather than dwelling on the resentment of past conflicts. Much is riding on YUCOM’s success.