Affiliates menu

Annex II

Legal Framework in Kosovo and Metohija

82. By the United Nations Security Council Resolution 1244 of 10 June 1999 civil and security presence under the auspices of the United Nations was established in Kosovo and Metohija (item 5). The Resolution prescribed that international civil presence had to establish interim administration in Kosovo and determined that people in Kosovo would be able to enjoy substantial autonomy within FR Yugoslavia. Further, it was responsible to provide interim administration, while establishing and overseeing the development of provisional democratic self-governing institutions (paragraph 10), as well as responsible for transfer of its administrative assignments in accordance with the establishment of the institutions concerned (item 11, under 4)), while in the final stage its responsibility would be to oversee the transfer of authority from provisional institutions of Kosovo to the institutions established under a political settlement (item 11, under 6).

By the UNMIK Directive 1999/11 73 of 25 July 1999 all legislative and executive power concerning Kosovo, including administration of judiciary, was entrusted to UNMIK […] while the implementation was entrusted to the Special Representative of the Secretary General (Article 1, paragraph 1).

Note #73
UNMIK Directive no. 1999/1 on powers of the Interim Administration in Kosovo
Return

The UNMIK Directive 2001/9 74 of 15 May 2001 proclaimed the constitutional framework for provisional self-government in Kosovo (the Constitutional Framework), defining provisional self-government institutions (PSGI) (Article 1, paragraph 2). According to the Constitutional Framework, the competences are shared between UNMIK and provisional self-government institutions with the aim to develop self-government in Kosovo until the settlement of the final status.

Note #74
Directive no. 2001/9 on the Constitutional Framework for Provisional Self-Government in Kosovo. This Directive entered into force on 15 May 2001. Amended by the Directive no. 2002/9. Implemented by the Administrative Instruction no. 2001/23, the Administrative Instruction no. 2003/15 and the Administrative Instruction no. 2004/6.
Return

The provisional self-government institutions were given a wide scope of competences in legislative, executive and administrative domains of power exercise (Chapter 5) while UNMIK would retain exclusive competence in the field of foreign affairs, judiciary, as well as of financial and budgetary controls (Chapter 8). Also, the Special Representative of the Secretary General would retain powers to monitor the acts and activities of provisional self-government institutions in order to see that they would be in accordance with the Resolution 1244 (Chapter 8, paragraph 1, under (b) and Chapter 12). It meant that all legislation in Kosovo and Metohija had to be adopted by the Kosovo Assembly in the first place and then also signed by the Special Representative of the Secretary General.

Since UNMIK has administration in Kosovo, international conventions on human rights must also be implemented in Kosovo and Metohija. The implementation of instruments for the protection of human rights in the Autonomous Province of Kosovo and Metohija, including the Convention on the Rights of Persons with Disabilities should be considered in the light of the Security Council Resolution 1244 (1999), operating part 11(ј) of the Security Council Resolution 1244 (1999) stressing that UNMIK shall be obliged to protect and promote human rights in Kosovo and Metohija.

Since the Convention on the Rights of Persons with Disabilities was adopted by the United Nations on 13 December 2006, and opened for signing on 30 March 2007, it is not a part of the Constitutional Framework for interim administration in Kosovo and Metohija. According to the available information, this Convention is not included in the list of instruments valid in the Province.

The State of Affairs at Shtimlje

Kenneth Roth, executive director of Human Rights Watch says in the Preamble of the Report that MDRI performed a huge job and prepared detailed report that would have to remind us of emergency of protection of human rights of persons with disabilities, as an especially vulnerable population.

MDRI states the following:

In spite of considerable inflow of international funds intended for development of democracy and support to civil society in Kosovo, this Report finds that persons with mental difficulties were not included in the agenda of the programme for protection of human rights. Concerning this population, Kosovo is a place of serious violations of human rights, to which no one pays attention (page 4 of the integral document);

"At social protection institutions and psychiatric wards in Kosovo, people were illegally and inadequately placed, contrary to national and international laws".

 

The findings and allegations of MDRI relating to the physical plant at Shtimlje, including the note and the comments:

1. Inhuman and degrading conditions (deprivation, inactivity of beneficiaries, no privacy, living in filth, communal clothing, no personal hygiene, psychotropic medication – which is administered with a dangerous lack of monitoring by psychiatric professionals. There is no psychiatrist on staff, beneficiaries are locked);

Note: Within the period of 18 months (2000-2001) UNMIK provided the data that at Shtime there were 18 people who died within the above mentioned period, of whom half were under 50 years of age, and 78% of them were under 60 years of age. According to the data provided by UNMIK, in many cases of death of people who died at the age of thirty and forty, death was considered natural. There is no independent method to establish whether death was natural or suspicious, while investigation or autopsy were undertaken only in case the manager of the physical plant at Shtimlje declared the case concerned suspicious.

Comment: The allegations stated in the Report directly report on violations of the Convention on the Rights of Persons with Disabilities, as follows:

Article 10 – Right to life

2. Physical violence and sexual abuse (allegations received by MDRI is consistent so it may be concluded that physical violence and sexual abuse are significant problems at Shtimlje. According to MDRI allegations of abuse should be formally investigated. In this sense, in June 2000 MDRI submitted to UNMIK evidence of physical violence and sexual abuse, and the then director of UNMIK Department for Health and Social Protection, Dr Vuori neglected the MDRI's letter completely. The identity of persons who died within the period concerned should be checked. Both the director of Shtime and Dr Vuori had their own views of this issue (...if there were any such cases, I would know of them...), which in no way may be replacement of an independent investigation; For example: a female beneficiary at Shtimlje said to the investigators of MDRI that she had been attacked with a knife, while the director of the plant said it should not be translated; an employee of the Norwegian Red Cross working at Shtimlje said to the investigators of MDRI that in November 1999 he witnessed rape, when a female beneficiary was raped by another beneficiary in the hall in the presence of the staff, and after he had asked the staff why they did not intervene he was told that the women asked for it and that it happened at Shtime every day; the Council for Advancing Human Rights of People with Disabilities visited at Shtimlje in 2002 and on that occasion they talked to six women selected by the director, and five of them said they had been subject to sexual abuse, resulting in an abortion and a broken arm.

Note: In 2001 MDRI informed UNMIK about a case of sexual abuse. UNMIK never expressed any willingness to protect the abused woman. MDRI requested assistance from UNMIK, WHO and OMIK (OSCE in Kosovo and Metohija) to establish some kind of protection for women wishing to give statements on abuse within the system. It has never happened and all initiatives by MDRI were ignored)

Comment: The allegations stated in the Report directly report on violations of the Convention on the Rights of Persons with Disabilities, as follows:

  • Article 6 - Women with disabilities
  • Article 10 – Right to life
  • Article 12 – Equal recognition before law
  • Article 13 – Access to justice
  • Article 14 – Liberty and security of the person
  • Article 15 – Freedom from torture or cruel, inhuman or degrading treatment or punishment
  • Article 16 – Freedom from exploitation, violence and abuse.

3. Vulnerability of children from Shtimlje (as the result of successful programme implemented by UNICEF and Doctors without Borders, children were moved from Shtimlje; children demonstrate signs indicating sexual abuse and continue suffering from the consequences of abuse mentally. Children were placed at two locations, one immediately after the Shtime building, and the other one planned for Serbian children was in Gračanica).

Note: 11 children of Serbian and other non-Albanian nationalities have been placed in Gračanica, who had been placed at Shtime before. The house for their placement in Gračanica had been constructed from a donation by the Kingdom of Netherlands.

Comment: The allegations stated in the Report directly report on violations of the Convention on the Rights of Persons with Disabilities, Article 7 – Children with disabilities.

4. Arbitrary detention at the institutions and legal representation (the majority of people placed at Shtimlje is there against the law applicable in Kosovo and Metohija and against international standards and documents; violation of Article 9 of the International Covenant on Civil and Political Rights, Article 23)

Comment: The allegations stated in the Report directly report on violations of the Convention on the Rights of Persons with Disabilities, as follows:

  • Article 10 – Right to life
  • Article 12 – Equal recognition before law
  • Article 13 – Access to justice
  • Article 14 – Liberty and security of the person

5. Reinforcing segregated services – the services should be based on the requirements of beneficiaries and implemented in the community (Community based services); experience demonstrated that large institutions are not suitable for persons with intellectual disabilities.

6. Right to citizen participation,

Note: Persons with disabilities and their representatives should decide on their rights, which is not the case in Kosovo and Metohija, because there is no association for representation.

Comment: According to our knowledge, and having a review of international documents on the implementation of the Conventions of the Council of Europe and the United nations in Kosovo and Metohija, the recommendations of MDRI stated in this report have never been implemented.

After the comprehensive report MDRI requested in the recommendations and conclusions the United Nations Secretary General to order to UNMIK:

  • to immediately protect persons placed at the institutions against further violence, sexual abuse, to provide conditions for safe living and to separate violent perpetrators from other beneficiaries;
  • to establish the system of overseeing in the field of human rights in order to be able to protect such rights;
  • to define a comprehensive plan for creation of community based services for people with mental disabilities;
  • to fix the date for gradual closing of Shtimlje (in stages);
  • to ensure participation of persons with mental disabilities in the process of creation of measures concerning them;
  • to report to the United Nations Human Rights Committee about the steps being undertaken to stop violence against persons with mental disabilities in Kosovo in compliance with the Committee Resolution from April. 75
Note #75
According to the Resolution, the UN Secretary General is requested to report on the activities of the UN institute in respect of protection of human rights of persons with disabilities.
Return

top