Kosovo has illegally arrested its main opposition leader. The European Parliament can, and should, take a strong stance in defence of democracy in Kosovo, argues Andrea Lorenzo Capussela.

Andrea Lorenzo Capussela is the author of State-Building in Kosovo: Democracy, Corruption and the EU in the Balkans.

This, and not the tear gas stories, colourful and unsettling though they are, is the real news. For this is unheard of in post-1945 Europe, and signals a slide towards authoritarianism. The EU has remained silent. Kosovo was the theatre of the most ambitious, intensive, and expensive state-building intervention ever launched. Arguably, it remains a semi protectorate of the West: a large EU mission still oversees the rule-of-law sector. Freedom House still qualifies Kosovo as a ‘semi-consolidated authoritarian regime’, the only one west of Belarus.

A couple of weeks ago, Kosovo’s authorities arrested the main opposition leader – Albin Kurti, the founder and most charismatic figure of the largest opposition party – and another nine of the opposition’s 31 MPs. Five of them, including Kurti, are now in pre-trial detention, for an initial one-month term, and the other five are under house arrest. Just yesterday (14 December), a further three opposition MPs were arrested, taking the total to 13.

These arrests are illegal, because under Kosovo’s constitution, MPs cannot be arrested without parliament’s consent (which was neither sought nor granted). And although a 2011 judgement by Kosovo’s constitutional court entirely misread this rule – upon genuinely untenable arguments – the parliamentary immunity remains.

Indeed, that judgement only underscores the need for such an immunity, whose rationale is to protect parliament’s freedom and safeguard the separation of powers. Kosovo’s judiciary, in fact, is so subservient to the executive (and the political élite which controls it) that it even acts in “anticipatory obedience” to the élite’s wishes, as a 2012 European Court of Auditors report notes. This is true also of the constitutional court, which explains that indefensible judgement.

So the need to protect the political and moral freedom of MPs from the threat of politically-motivated arrests is particularly high in Kosovo. Immunity does precisely that, and not more. If MPs breach criminal laws, they can be charged, tried, convicted, and jailed. But they cannot be arrested before having been convicted. Only parliament can allow that, with a vote (immunity is a prerogative of parliament, not of individual MPs).

The arrests are linked to a political crisis. To protest against certain choices of the government, the opposition decided to prevent parliament from meeting. Their tactics followed an escalation, which the international media noticed: first they blew whistles, then threw eggs, then opened tear gas cans inside the chamber (this has now happened six or seven times; but parliament has often met in other rooms).

I take it for granted that using tear gas against other people is a crime. And I think that doing so in parliament is wholly unacceptable. Yet it does not follow that the MPs responsible can be arrested. (Including because pre-trial arrest is legitimate only if no other remedy is available: in this case, it would seem sufficient to be more careful in checking the pockets and briefcases of MPs entering parliament.)

So, the real news is not the tear gas. It is that Kosovo’s authorities have illegally arrested one third of the parliamentary opposition and its main leader, which is unheard of in the democratic states of post-1945 Europe, and that nobody has complained, apart from the opposition and Kosovo’s main – and admirably free – newspaper.

This suggests a slide towards authoritarianism: the “semi-consolidated authoritarian regime” seems intent in consolidating itself. But to acknowledge this, one must acknowledge also that the state-building intervention has largely failed, the checks and balances system does not function, the judiciary, including the crucial constitutional court, lacks independence, and the separation of powers is very weak.

None of this is easy to acknowledge for either the EU mission in Kosovo or the officials and institutions in Brussels, that have hitherto conducted the Union’s Kosovo policy. And as Europe’s public opinion is not well informed about what happens in the small Balkan country, they can afford not to acknowledge all that. This, I think, explains the EU’s silence about a fact whose extraordinary nature warrants repetition: Kosovo’s authorities have illegally arrested one third of the parliamentary opposition and its main leader.

Of course, I may be mistaken. Although I fail to imagine what they might be, I cannot exclude the possibility that strong arguments to defend the arrests exist. But I can confidently exclude any suggestion that this question should be left without careful scrutiny. One cannot simply assume that, as Kosovo’s judiciary has issued those arrest warrants, it must follow that the arrest warrants are lawful. Even beside the question of immunity, in fact, every EU report on Kosovo states that the judiciary lacks independence and is heavily exposed to political interference.

Among the EU institutions, the silence of the European Parliament is gravest.

In the foreign affairs committee, the rapporteur for Kosovo is MEP Ulrike Lunacek. In remarks to Kosovo’s press, she voiced reservations about the “timing and extent” of the arrests, but assumed away the question of their legality – they “may have been carried out according to criminal procedures”, she said. And when she presented to the committee her draft resolution on Kosovo, on 7 December, she did not mention the arrests. Nor does her draft, which her office very kindly shared with me.

The discussion on the resolution begins now. I hope that the European Parliament will take a stand on those arrests, and I hope that its stand shall assist those who oppose the authoritarianism that these illegal arrests exemplify.

Incidentally, there are also solid Realpolitik arguments for condemning these events. One important reason why, between December 2014 and February 2015, about 5% of Kosovo’s population migrated illegally into the EU is precisely that they lost all trust in their political system.

>> Read: Will the European Parliament defend Kosovo’s democracy?

>> Read: Kosovo needs tough love from the European Parliament, not euphemisms