Page - 282 - in Austrian Law Journal, Volume 2/2015

ALJ 2/2015 Wolfgang Benedek 282 The HRAP again requested the views of the SRSG on the matter, which were supportive of the decision of the Special Chamber and, in particular, held that it was “not within HRAP’s purview to assess the legality and accuracy of decisions made by competent judicial institutions, unless there is evidence that such decisions have been rendered in an obviously unfair and inaccurate way”.28 The Panel accepted this approach in line with the pertinent jurisprudence of the European Court of Human Rights29 and, following a similar line of reasoning as in “Guga”, found that the complainant had indeed shown circumstances that indicate discrimination and that the Special Chamber had ignored relevant facts although confirmed by KTA. It found this attitude “disturbing” and “surprising”, in particular as the Special Chamber had followed the claims of the group challenging the inclusion of the complainant in spite of facts confirming the contrary and its own findings in other cases of discrimination.30 The Panel, therefore, reached the same conclusion as in “Guga”, in particular that the Special Chamber had failed to recognize the existence of a prima facie case of indirect discrimination and to give effect to the reversal of burden of proof in the Kosovo anti-discrimination law. It thus found a “violation of Article 14, taken in conjunction with Article 6 of the ECHR”,31 which resulted in the same set of concluding comments and recommen- dations as in “Guga”.32 IV. Comments on the Cases The two cases show the important role that the HRAP managed to play in applying the standards of the ECHR to the specific area of minority protection in privatization cases in Kosovo. While the Republic of Kosovo itself and it citizens are prevented from participating in the enforcement system of the ECHR for lack of membership in the Council of Europe, the HRAP in its area of competence demonstrates, what such membership could entail for the state and its minorities. There were serious limitations of the mandate of the HRAP in terms of substance, i.e. potential human rights violations by UNMIK, and time, as it could only accept complaints for events since 2005 till the year 2008, when UNMIK ceased to exercise its executive powers (in some areas this happened with the entry into force of the Kosovo constitution, in others – like the police and justice components – this meant the end of 2008 as a result of the establishment of the EULEX mission). Its competence, however, included ongoing violations from before 2005. In any case, the competence of the Panel to review the accountability of the United Nations Mission in Kosovo on the basis of the applicable law, i.e. the ECHR and other international human rights treaties, which did not play a role in these cases, is by itself very remarkable. UNMIK was the highest authority during this time and, like a government, also responsible for the actions of the Courts. The review of these actions by the HRAP can be compared to the reviews by the European Court of Human Rights of decisions by national courts, however, only within its limited mandate. Certainly, it is disturbing that it is in the hands of the United Nations how to comply with the recommendations of the Panel and this compliance has not been satisfactory. However, the work of the HRAP can be considered as best practice, setting standards not only for international 28 Nevenka Ristić v. UNMIK, HRAP, para. 29. 29 Nevenka Ristić v. UNMIK, HRAP, para. 53, referring to I.J.L. and Others/United Kingdom, no. 29522/95, 30056/96, 30574/96, Dec. 19, 2000, ECtHR and other judgments. 30 Nevenka Ristić v. UNMIK, HRAP, paras. 57 and 58. 31 Nevenka Ristić v. UNMIK, HRAP, para. 78. 32 Nevenka Ristić v. UNMIK, HRAP, paras. 79–82.