On 17 April 2025, the Kosovo Specialist Chamber of the Constitutional Court (Chamber) issued a worrying judgment regarding the more lenient punishment – the lex mitior principle under Article 7 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and Article 33 of the Kosovo Constitution. The reasoning relies on the legal status of the Kosovo Specialist Chambers (KSC) and its applicable law. Hence, before embarking on the facts of the case and the analysis of the judgment, a brief overview of the KSC and applicable law is provided. The conclusions zoom out and share concerns about the wider implications of this judgment.
The KSC, seated in The Hague, were established in 2015 as special judicial institutions within the justice system of Kosovo to investigate, prosecute and adjudicate international crimes committed during and in the aftermath of the conflict in Kosovo, reported in the Council of Europe Parliamentary Assembly Report Doc 12462 of 7 January 2011. As regards substantive criminal law applicable before the KSC, Article 12 of the Law on Specialist Chambers and Specialist Prosecutor’s Office (KSC Law) provides that the KSC shall apply customary international law and the substantive criminal law of Kosovo insofar as it is in compliance with customary international law, both as applicable at the time the crimes were committed. With respect to lex mitior before the KSC, Articles 15 and 44 of the KSC Law refer to the substantive criminal laws in force in Kosovo in the respective periods of time, with due regard to any subsequent more lenient sentencing range.
Facts of the case
The KSC trial panel sentenced the accused Salih Mustafa to twenty-six (26) years in prison for war crimes. Upon appeal, this was reduced to twenty-two (22) years. In his constitutional complaint to the Chamber, the applicant argued that, in determining the sentence, the KSC had acted in breach of the lex mitior principle as they had excluded the applicability of the 1976 SFRY Criminal Code. According to Article 20 of the 1976 SFRY Criminal Code, prison sentence may not be more than 15 years, and for criminal acts eligible for death penalty courts cannot impose a term longer than 20 years. Hence, it is clear that the 1976 SFRY Criminal Code provided for a more lenient sentencing with regard to war crimes.
The Kosovo Constitution provides for the direct application of the ECHR, and also in its Article 33 specifies that the punishment shall be determined on the basis of a more favorable law. Pursuant to Article 53 of the Constitution, human rights and fundamental freedoms guaranteed by the Constitution must be interpreted consistent with the court decisions of the ECtHR. Furthermore, the KSC Law provides for the application of the Constitution and the ECHR. In fact, when ruling on compatibility of the KSC with the Kosovo Constitution, the Kosovo Constitutional Court required that the KSC “do not diminish the constitutional rights guaranteed by … the Constitution” (judgment in case no. KO 26/15).
The applicant argued that the Supreme Court panel should have compared the specific war crimes for which he had been convicted under Article 14 of the KSC Law with Article 142 of the 1976 SFRY Criminal Code, which substantively codified the same war crimes as those he had been adjudged guilty of and which would offer a more lenient sentencing range. In support of his argument, the applicant referred to ECtHR’s judgment in the case of Maktouf and Damjanović v. Bosnia and Herzegovina, which concerned the application of the 1976 SFRY Criminal Code as the lex mitior.
The Chamber’s judgment
In order to determine whether lex mitior was duly applied, the Chamber examined what constitutes applicable law before the KSC. In doing so, it reiterated that the KSC are governed by their autonomous legal framework. The Chamber pointed out that the KSC were governed by the KSC Law, and that other Kosovo law would apply only and to the extent permitted by the KSC Law. It recalled that the KSC were established pursuant to an exchange of letters between the President of Kosovo and the High Representative of the European Union for Foreign Affairs and Security Policy in 2014, which was ratified by the Assembly of Kosovo as an international agreement between Kosovo and the European Union. The 2014 exchange of letters stated that the KSC would be governed by its own statute and rules of procedure and evidence. Following the 2014 exchange of letters, the Kosovo Assembly adopted Article 162 of the Constitution providing that the organisation, functioning and jurisdiction of the KSC would be regulated by a special KSC Law.
Article 14 of the KSC Law sets out the meaning of war crimes under customary international law but it does not provide for any specific sanctions for such offences. The punishments that the KSC may impose upon a convicted person are set out in Article 44 of the KSC Law. Under Article 44(2) of the KSC Law, in considering the punishment for crimes under international law, the KSC “shall take into account” the punishments provided for the crime under the applicable law in Kosovo at the time of the commission of the crime and, in particular, any subsequent more lenient punishment.
However, according to the Chamber, a literal interpretation of Article 44(2) of the KSC Law (“shall take into account”) implies that the KSC were not bound to follow those sentencing ranges when determining a sentence for a crime under international law. According to the Chamber, the legislator did not intend to bind the KSC to the sentencing ranges in Kosovo laws. The lex mitior principle would be only applicable if a law that binds the KSC is subsequently changed to a more favourable law by which the KSC are also bound. In other words, only the KSC Law would be binding on the KSC but not any other Kosovo law.
With this argument in mind the Chamber dismissed the findings in Maktouf and Damjanović v. Bosnia and Herzegovina as irrelevant in the present case. The Chamber pointed out that in that case the individuals had been convicted and sentenced under the substantive laws of Bosnia and Herzegovina, while in the present case the applicant was convicted by the KSC under the KSC Law within their autonomous legal framework. It then moved on to recall that the ICTY had a similar sentencing regime comparable to the KSC regime and that it was not bound by the laws and the sentencing practices of the former Yugoslavia. Having found that neither the 1976 SFRY Criminal Code nor any subsequent Kosovo laws apply as a matter of binding law to the legal regime of the KSC, the Chamber concluded that the applicant could not successfully claim a violation of the principle of lex mitior as guaranteed by Article 7 ECHR and Article 33 of the Constitution.
Analysis
The Chamber’s reasoning raises two concerns. First, it made erroneous comparison between the KSC and the ICTY as regards applicable law. While the ICTY was established by the UN Security Council under Chapter VII of the UN Charter and has functioned based on its own Statute and international law, the KSC is rooted in an international agreement between Kosovo and the EU and, importantly, the Kosovo Constitution. The KSC Law explicitly provides for the application of the Kosovo Constitution and international law. According to the webpage of the KSC, they are “part of the judicial system of Kosovo … established by a Constitutional Amendment and a Law adopted by the Kosovo Assembly … with a specific mandate and jurisdiction over certain crimes … under Kosovo law”.
The second aspect concerns the Chamber’s departure from its earlier reading of what constitutes part of its autonomous legal framework. While in the present case, the Chamber decided that explicit provisions under Article 44 of the KSC Law are non-binding, in a 2022 decision it had held that “[a]s it follows from Article 3(4) of the [KSC] Law, the provisions of Kosovo law that have been expressly incorporated into the Law form the SC’s own autonomous legal framework” (para 66). As the respective substantive criminal laws in force in Kosovo, including the 1976 SFRY Criminal Code, are referenced in the KSC Law, they are part of the KSC legal regime, even if autonomous.
In particular, Articles 12 and 15 of the KSC Law expressly incorporate specific substantive criminal laws of Kosovo, and Article 44 indicates the obligation on the KSC to apply a more lenient sentence. As regards the criminal punishment in a specific case, it is true that the KSC Law is not phrased in terms of which substantive law the KSC are “bound” to apply; instead, the KSC law requires that, in determining the punishment, the KSC “shall take into account” the respective substantive laws, subject to any subsequent more lenient law. The words “shall take into account” entail an evaluation and assessment on part of the KSC. Though they do not exist in a vacuum but must be read in the context of the KSC legal framework and, vitally, in compliance with higher normative acts of the KSC regime, namely, the Constitution and accordingly the ECHR, also given that the KSC are to function in compliance with the Constitution and not to diminish the Constitutional rights. It follows that the parameters of “shall take into account” are the guarantees contained in Article 7 ECHR and Article 33 of the Constitution. It is in the nature of the lex mitior principle that it requires assessment in each specific case. As summarised by Judge Albuquerque, according to the ECtHR case-law,
“the lex mitior must be found in concreto, in other words the judge must test each of the applicable penal laws (the old and new laws) against the specific facts of the case in order to identify what would be the presumed penalty in the light of the new and the old law. After establishing the presumed penalties resulting from the applicable laws, and in view of all the circumstances of the case, the judge must effectively apply the one more favourable to the defendant”.
In our view, the Chamber’s reasoning is flawed on the principal level. The Chamber’s reliance on the autonomy of the KSC legal regime is misplaced for the KSC Law expressly incorporates the substantive criminal laws into the KSC legal regime. This case is in fact about the interpretation of the words “shall take into account” in the KSC Law. The ordinary meaning of those words requires the KSC to consider the substantive criminal laws subject to the principle of lex mitior. This is also a constitutional obligation to ensure that proceedings before the KSC do not diminish the human rights and fundamental freedoms guaranteed by the Constitution and accordingly the ECHR.
Conclusions
Issues pertaining to Article 7 ECHR, including lex mitior, present a core aspect of legality in criminal justice and is indispensably connected to legal certainty and arbitrariness of judicial authorities. According to Judith N. Shklar, this system of rules of infinite value aims at protecting individuals against arbitrariness (page 152). The ECtHR too has consistently held that the lex mitior guarantee enshrined in Article 7 ECHR is an essential element of the rule of law. The ECtHR established that a consensus has gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law. Article 7 ECHR should therefore be construed and applied in accordance with its object and purpose to provide effective safeguards against arbitrary prosecution, conviction and punishment.
Challenges to legality are inherent in international criminal adjudication. However, a more relaxed approach to legality for international courts and tribunals was seen as acceptable and necessary considering that they were established after the commission of crimes and, apart from customary international law, lacked a comprehensive applicable law. This was also justified on grounds of morality and respect for human dignity of the victims. Reading Theodor Meron’s work on the principle of legality it can be observed that the ICTY, ICTR, and ICC made efforts to comply with the logic and spirit of legality, even if failing to do so from a more formalistic standpoint (pages 110-115).
While some scholars still find this approach to legality problematic, we think it is important to understand how international criminal courts and tribunals struggled with applicable law, and the efforts made to ensure fairness and avoid arbitrariness while juggling with questions of legality.
National and hybrid courts are also not immune to legality challenges concerning the adjudication of international crimes, but only when national laws in place did not recognise certain international crimes that were considered punishable under international law. For illustration, the 1976 SFRY Criminal Code foresaw only war crimes and genocide as international crimes. Courts in the region have used newer laws for punishments related to crimes against humanity to fill in that gap. Hence, for crimes against humanity, customary international law and newer code serve as guideposts. While this may lead to an illogical or incoherent sentencing policy, the ECtHR has ruled that, if laws applicable at the time of the commission of crimes were not available, but the crimes were considered punishable under international law, courts have no option but to apply newer codes. The reasoning based on necessity is similar to that of international criminal courts.
However, for the purpose of applicable law, the KSC are not ICTY, ICTR or ICC, and the war crimes at issue in the present case were clearly regulated by the 1976 SFRY Criminal Code, a law stipulated in the KSC Law. The KSC Law specifies in concrete terms the laws that form part of the KSC regime, and the KSC have accepted to be bound by the Kosovo Constitution and the KSC Law. While this submission does not contest the peculiar features of jurisdiction and operation of the KSC, the Kosovo Constitution and the KSC Law explicitly require the KSC to assess in each specific case a more lenient sentencing range by considering the substantive criminal laws referenced in the KSC legal framework. The failure to do so raises fundamental concerns of legality and fragmentation of Kosovo’s constitutional law. It may also lead to diminishing by the KSC of the human rights and fundamental freedoms guaranteed by the Kosovo Constitution – a precondition on the basis of which the Constitutional Court of Kosovo authorised the establishment of the KSC (judgment in case no. KO 26/15).
As Kosovo is still not a member of the Council of Europe, and the decisions of the KSC are not reviewable by the Kosovo Constitutional Court, Mr Mustafa is unable to contest the findings of the Chamber before another local or international court.
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