Constitutional Court

The Applicant filed a Referral pursuant to Articles 93.10 and 113.3.1 of the Constitution, requesting an interpretation of the immunities afforded the President of Kosovo, Assembly Deputies and Members of Government, specifying Articles 89, 75.2 and 98 of the Constitution, respectively, The Court held that the Referral was admissible, concluding that the Prime Minister was an authorized party pursuant to Article 113.3.1 because each question raised an issue related to the abilities of the President, Assembly Deputies and Members of Government to perform their Constitutional functions independently, noting that Chapter III of the Law on the Constitutional Court provides no deadline for Referrals submitted under Article 93.10, On the merits, the Court held that Articles 75.1, 89 and 98 of the Constitution afford the President, Assembly Deputies and Members of Government functional immunity for actions taken or decision made within the scope of their responsibilities, encompassing opinions expressed, votes cast or decisions made, which is of unlimited duration. The Court clarified that the expression “[w]hile performing his/her duties” refers to performing the work of the Assembly during its plenary and committee meetings, As for Assembly Deputy immunities, the Court emphasized the importance of separation of powers and the Assembly’s independence, citing Syngelidis v. Greece. The Assembly President, the Assembly, three Assembly Deputies, and the Parliamentary Group of Vitëvendosja provided various responses and/or comments regarding the issue of immunity, which the Court took into account. The Court relied upon the plain language of Articles 29, 70, 72 and 75 of the Constitution when resolving the question of a Deputy’s immunities, noting also that a Deputy, like any other person under the jurisdiction of Kosovo courts, enjoys the protections of Articles 22, 24.1, 29, 30, 31 and 54 of the Constitution, as well as Articles 5 and 6 of the European Convention on Human Rights. It held that a Deputy is not immune from criminal prosecution for actions taken or decision made outside the scope of his/her responsibilities, regardless of whether the criminal acts occurred prior to election or during service as a Deputy. It held that a Deputy could not be dismissed from the Assembly, except for reasons outlined in Article 70 of the Constitution. The Court held that with the Assembly’s approval an Assembly Deputy could be arrested or detained while performing his/her duties at plenary meetings of the Assembly and/or of its committees. It also held that an Assembly Deputy could be arrested or detained without the Assembly’s approval when there are no plenary meetings of the Assembly or meetings of its committees. The Court held that a Deputy could be arrested or detained without approval of the Assembly when caught committing a serious offence that is punishable by five or more years of imprisonment. It also held that a Deputy could be arrested or detained when his/her mandate ends arising from a conviction of a crime and a sentence of one or more years of imprisonment by a final court decision. The Court held that an authorized prosecutor has the right to request the Assembly for waiver of a Deputy’s immunity. The Court held that an authorized prosecutor could arrest or detain a Deputy without the Assembly’s consent provided that it occurs when there is no plenary meeting of the Assembly or of its committees, As for the President’s immunities, the Court relied upon the plain language of Articles 89, 90 and 91 of the, Constitution and the Law on the President, Law No. 03/L-094 when holding that the President is not immune from prosecution for actions taken and decision made outside the scope of his/her responsibility, and that a serious crime prosecution may be initiated against the President. It also held that the President is not immune from civil lawsuit for actions taken and decision made outside the scope of his/her responsibilities. The Court held that the Assembly could dismiss the President in accordance with Article 91 of the Constitution. However, the Court held that the President could not be subjected to arrest or detention during his/her term of office due to the nature of the functions of the President, which require constant availability, Regarding Members of Government, the Court relied upon Articles 97 and 98 of the Constitution when holding that they do not have any special immunity for actions taken and decisions made outside the scope of their responsibility, The Court held that the Judgment was effective immediately