Press Release

During the Session held on 20 September 2011 the Constitutional Court of the Republic of Kosovo deliberated and voted in the Case KO 98/11, “The Referral of the Government of the Republic of Kosovo concerning the immunities of the Deputies of Assembly of the Republic of Kosovo, the President of the Republic of Kosovo and members of the Government of the Republic of Kosovo.”

In this case, the Government submitted the Referral containing three separate issues related to the immunities of different state bodies, namely- the deputies of the Assembly, the President of the Republic and the members of the Government. The Government considers that there is necessity to interpret and clarify the questions of immunities because this issue has a direct impact on the democratic functioning of the institutions of the Republic of Kosovo, pursuant to the Constitution.

The Constitutional Court as the final authority for the interpretation of the Constitution unanimously decided that:

“
I. The Referral is admissible;

II. In accordance with Article 75(1), Article 89 and Article 98 of the Constitution, the deputies of the Assembly, the President of the Republic and the members of the Government enjoy functional immunity for actions taken or decisions made within the scope of their respective responsibility.  Accordingly, deputies of the Assembly, the President of the Republic and the members of the Government are non-liable in judicial proceedings of any nature over the opinions expressed, votes cast or decisions taken within the scope of their responsibility. This type of immunity is of unlimited duration.

A. Concerning the immunity of the deputies of the Assembly

III.  Acting outside the scope of their responsibilities:

1. Deputies are not immune from criminal prosecution for actions taken or decisions made outside the scope of their responsibilities. This is applicable both with regard to prosecution for criminal acts allegedly committed prior to the beginning of their mandate and during the course of their mandate as deputies;
2. Deputies are not immune from civil lawsuit for actions taken and decisions made outside the scope of their responsibilities;
3.  Deputies of the Assembly cannot be dismissed other then for reasons set out in Article 70 of the Constitution.

IV. Arrest or other detention of a deputy:

1. A deputy may be arrested or detained while performing his/ her duties, that is, at plenary meetings of the Assembly and/or of its committees, following a decision of the Assembly.
2. A deputy may be arrested or detained while not performing his/her duties, that is, when there are no plenary meetings of the Assembly or meetings of its committees without a decision of the Assembly.
3. A deputy may be arrested or detained when caught committing (in flagrante) a serious offence that is punishable with five (5) or more years of imprisonment without a decision of the Assembly.
4. A deputy may be arrested or detained when his/her mandate ends arising from a conviction and sentence to one or more years of imprisonment by a final court decision of committing a crime.

V. “While performing his/her duties” means the work of the Assembly during its plenary and committee meetings.

VI. Any prosecutorial body/institution that is performing the prosecution of persons charged with committing criminal acts as described by Article 109 of the Constitution and that acts within the jurisdiction prescribed by the applicable law for the Republic of Kosovo have the right to request the Assembly to waive the immunity of a deputy. This body/institution is authorised to arrest or detain without a decision of the Assembly while the deputy is not performing his/her duties that is, when there is no plenary meeting of the Assembly or of its committees.

B. Concerning the immunity of the President of the Republic

VII. Acting outside the scope of his/her respective responsibility:

1. The President is not immune from prosecution for actions taken and decisions made outside the scope of his/her responsibility. A prosecution may be initiated and performed against a President for a serious crime.
2. The President is not immune from civil lawsuit for actions taken and decisions made outside the scope of his/her responsibilities.
3. The President may be dismissed by the Assembly in accordance with Article 91 of the Constitution.
4. The President cannot be subject to arrest or detention, during his/her term of office, because of the nature of the functions of the President which require his/her permanent availability to perform them.

C. Concerning the immunity of the members of the Government

VII. The members of the Government do not have any special protection for their actions taken and decisions made outside the scope of their responsibility. “

The full text of the Judgment shall be notified to the Parties and shall be published in the Official Gazette in due course.