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Author: Hon. Selvete Gërxhaliu-Krasniqi, Judge of Constitutional Court of Republic Kosovo
This article will focus on legal and policy framework of the Republic of Kosovo concerning child – inclusive restorative justice in the context of domestic violence. The Constitution as the highest legal act, guarantees the rights of the child. Article 50 provides that children enjoy the right to protection and care necessary for their wellbeing. In addition, international legal instruments such as the Convention on the Rights of the Child are directly applicable in the legal system of the Republic of Kosovo, as provided under Article 22 of the Constitution.
More specifically, provisions and procedures pertaining to restorative justice for children as victims of domestic violence are provided in: the Istanbul Convention, directly applicable in our the legal system and having priority over provisions of laws and other acts of public institutions: Criminal Code of the Republic of Kosovo, Law No.03/L –182 on Protection Against Domestic Violence, Law no.06/L-084 on Child Protection, Juvenile Justice Code and National Strategy on Protection Against Domestic Violence and Violence Against Women [2022 – 2026]. Thus, the presentation of the above normative and policy framework will be the focus of this article.
The Constitution of the Republic of Kosovo in Article 50 stipulates that “Every child enjoys the right to be protected from violence, maltreatment and exploitation”. The Convention on the Rights of the Child promotes the best interest of the child as paramount principle in dealing with domestic violence. Following the adoption of constitutional amendments in 2020, the Istanbul Convention became part of the legal system of the Republic of Kosovo. The provisions of the Istanbul Convention provide the specific guarantees in respect of child inclusive restorative justice. In this respect, the Istanbul Convention focuses on providing mechanisms and procedures with the purpose of repairing the effects of a conflict and bringing the conflicting parties together, through mediation and reconciliation. Article 18 which sets out a number of general principles to be respected in the provision of protective and supportive services, in particular the responsible state authorities are required to establish necessary mechanisms for the purpose of ensuring effective coordination between all relevant state agencies, including the judiciary, public prosecutors, law enforcement agencies, victim advocates, social welfare services, local and regional authorities, as well as non-governmental organizations and other pertinent organizations and entities, in order to protect and support victims and witnesses of all forms of violence. In addition, Article 29 aims at ensuring that victims of any of the forms of violence covered by the scope of this Convention can turn to the national legal system for an adequate civil remedy against the perpetrator. Concretely, it sets out obligations for the state authorities in accordance with the general principles of international law to take the necessary legislative or other steps to give victims adequate civil remedies against the offender as well as adequate civil remedies against state authorities who have disregarded their obligation to take the necessary preventive or protective measures within the scope of their authority. The mechanisms of reparation, which include rehabilitation, satisfaction, and non-repetition as part of the due diligence obligations by state authorities are further stipulated in the constitutional amendments in 2020.
Furthermore, the legal provisions provide also for regular personal relations and direct contact between the child and the parents. The legal acts which further specify the protection of rights of children as victims of domestic violence aiming to restore and protect the wellbeing of the child are the Criminal Code of Kosovo, the Law on Protection from Domestic Violence, Law on Child Protection and the Justice Juvenile Code. In terms of legal framework, all actions and measures undertaken by the institutions shall be in the best interest of the child. The Law on Child Protection, gives priority to the interest of the child, Article 5 stipulates, in all child-related activities and decisions made by parents or guardians, institutions, child protection agencies, child protection experts, courts, administrative authorities, or legislative bodies, the best interests of the child must be a priority and be given the highest consideration. This means that in the process of restorative justice and social integration the views of the child must be respected, by observing the child’s point of view, the child is given the opportunity to express his/her wishes and opinions in matters related to him/her. In cases where children, due to domestic violence in their family, have been left without parental care, the Law on the Child Protection foresees various measures or possibilities of their protection through guardianship, foster care, residential accommodation, or independent living through supervision. In cases when competent state authorities undertake protective measures according to Article 32, placement of the child in alternative care, the child protection officer, when possible, draws up a plan for parenting, which is part of the Individual Child Protection Plan and aims to prepare the parents for the return of the child in the family after the end of the protective measure. According to Article 37, in the process of reintegration, as part of restorative justice, children can never be left without education and training, regardless of what measures are being taken against them, the relevant institutions must provide friendly conditions for their continued education and training. While providing the abovementioned protective measures to children, the legal provisions also guarantee their right to privacy. Furthermore, Article 57 Medical and psychological assistance, rehabilitation and measures for reintegration of the Law on Child Protection regulates issues related to the child's health, the treatment given to the child placed in health care institutions, as well as access to assistance and support services.
Lastly, in the context of compensation, the newly adopted Law No. 08/L-109 on Crime Victim Compensation regulates the right to financial compensation of victims of violent criminal offenses and their dependents, decision-making authorities and procedures for exercising the right to compensation in both domestic and transboundary situations. Based on the provisions of this law, child victims through legal guardians are also eligible to claim compensation.
Policy and Established Mechanism on DV cases
The National Strategy on Protection against Domestic Violence and Violence against Women (hereinafter: the National Strategy) has four objectives set out to be achieved during the period of 2022-2026. Its objectives are identification and prevention of violence through education and consciousness; advancing and harmonizing public policies with international standards; institutional empowerment for protection and treatment of victims and rehabilitation; and reintegration of victims. For the year 2021, there are 327 children provided with services in terms of dealing with domestic violence cases, 162 of them are boys and 165 are girls.
In general, services provided for domestic violence victims are tailored for all categories of victims (adults and children), with adequate information and counseling, self-help groups, advocacy, economic empowerment and legal advice. Every action conducted by them, represents a journey toward wellbeing and wholeness that victims can experience, contributing directly to the achievement of restorative justice.
Coordination and support for victims of domestic violence - child focused
Based on the aforementioned acts, we note that they all foresee coordination between the relevant institutions for the achievement of the objectives of restorative justice. General obligations to guarantee restorative justice for child victims based on these acts and policy documents aim to achieve the establishment of adequate mechanisms and safeguards for restorative justice. It can be also noticed that child victims of domestic violence are included in the above regulatory framework. Although a policy document on restorative justice, which includes a strategy on rehabilitation and satisfaction process specifically aimed at child victims would be highly recommended.
The newly adopted National Strategy, in its objectives, foresees a coordination between relevant institutions. Through this coordination, the competent institutions of the Republic of Kosovo are expected to create a friendly setting that is most effective to achieving the goals of restorative justice. This affects the creation of slightly more favorable financial conditions for the well-being of the child (as a third party), which goes in line with the general objectives of restorative justice in the benefit of children to receive continuous assistance to be reintegrated in society. These reintegration measures are drafted based on the child's specific needs as well as the child's particular forms of injury. Thus, based on this Strategy, the final goal of rehabilitation should be the dignified reunification with the family, in those cases where it is possible, and in the best interest of the child, reintegration into the community and social life. The child is provided ongoing support and counseling to avoid re-victimization and social exclusion.
Based on the succinct presentation and elaboration of the aforementioned legal and policy framework, the conclusion would be that the applicable legal framework foresees general obligations and mechanisms through which restorative justice for child victims can be safeguarded. However, Kosovo’s institutions have not yet managed to tailor specific policy that would address and strive to establish concrete mechanisms for restorative justice with the child as a victim of domestic violence in its center.
Kosovo’s institutions, such as the Police, the State Prosecutor's Office, the Center for Social Work, Victim Advocacy Unit, Ombudsman and Civil Society organizations are the main actors to prevent and combat domestic violence, protect the rights of the children and undertake actions related to the reintegration, education and resocialization of this category of victims. Indeed, based on international standards one can conclude that specific and more enhanced standard and as well as adequate procedures and mechanisms are deemed necessary to significantly improve and safeguard restorative justice for children.