Constitutional Court

KO181/18, Request for the assessment of the alleged conflict between the constitutional competences of the President of the Republic of Kosovo and the Government of the Republic of Kosovo, as provided by Article 113.3 (1) of the Constitution, regarding the decision of the Government to transfer some publicly owned and socially owned properties in the use or ownership of municipalities

KO181/18, Resolution on Inadmissibility of 13 June 2019, published on 1 July 2019

Keywords: conflict of constitutional competencies

The case was submitted by the President of the Republic of Kosovo (hereinafter: the President), with a request for assessment of the conflict of constitutional competence between the President and the Government of the Republic of Kosovo (hereinafter: the Government).

The allegation of conflict of constitutional competence was related to the legality of the transfer by the Government of certain social properties in the use of the municipalities, since, according to the allegation, “President […] as head of state must take the necessary actions to clarify this situation that the immovable property is legally transferred by the Government to the use of municipalities and does not hinder other institutions mandated on this issue”, in accordance with articles 83 and 84 of the Constitution.

In this regard, the Applicant requested the Constitutional Court of the Republic of Kosovo (hereinafter: the Court) that, in light of the constitutional provisions foreseen in paragraph 4, of Article 92 and paragraph 4 of Article 93 of the Constitution, to answer the following questions:

“1. should [the Government] annul  all decisions for the transfer of immovable property of the Republic of Kosovo for use to municipalities, in the absence of a legal basis; and

2. should [the Government] review all decisions related to the withdrawal from the privatization process of properties and their return to the ownership of municipalities and to respect the procedures under the legislation in force on this issue”.

The Court recalled the applicable test to assess whether there was a conflict in a concrete case between the constitutional competencies or not, and applied the latter in the circumstances of the present case and in the light of the President’s allegations as a party to the request against the Government as a responding party. In this regard, the Court reiterated that Article 113.3 (1) of the Constitution encompasses three requirements of the constitutional level, namely the necessity that: (i) the conflict be raised by one of the three authorized parties; (ii) the issue to be raised for a constitutional competence established in the Constitution for one of the three authorized parties; and, (iii) to exist a conflict.

In applying this test, the Court concluded that in the present case, although the President is an authorized party to raise an issue of conflict of constitutional competencies between him and the Government, he has not sufficiently proved that the issue raised relates to his competences foreseen by the Constitution. Thus, the referral of the President has fulfilled the requirement of item (i) of the aforementioned test; but did not fulfill the requirement of item (ii) – as he has not sufficiently proved that the issue raised is related to his constitutional competencies envisaged by the Constitution. The Court, as the requirement (ii) of the test was not met, did not further review the fulfillment of requirement (iii) because of the fact that there was no constitutional competence or a conflict between the constitutional competencies.

Therefore, the Court unanimously declared the President’s referral for the alleged conflict between his constitutional competencies and the Government inadmissible for review of the merits.