Constitutional Court

The Applicants filed Referral based on Article 113.5 of the Constitution, alleging that Article 4.3.3 of the Law on the Village of Hoçë e Madhe, Article 14.1.2 of the Law on the Historic Centre of Prizren, are in contradiction with the Constitution. The Applicants stated that Article 4.3.3 of the Law on the Village of Hoçë e Madhe was in contradiction with the principle of secularism and neutrality in the religious matters and that creates privileges to a religious community, by marginalizing and discriminating other religious communities and the citizens who do not have religious orientation or belief. The Applicants filed same arguments regarding the Article 14.1.2 of the Law on the Historic Centre of Prizren.

Article 4 of the Law on the Village of Hoce e Madhe provides for a Committee to be established by the Municipality of Rahovec. The abovementioned committee will be composed of (5) members, where one of them is selected by the Serbian Orthodox Church and must be a resident of the village of Hoçë e Madhe. The Applicants stated that it is necessary that the composition of the Committee for the village of Hoçë e Madhe does not include any member, selected by the Serbian Orthodox Church, because it automatically creates a privileged position for it and in that case among the other is violated Article 24 [Equality before the Law], of the Constitution, openly creating inequality for the Serbian Orthodox Church towards the members of other religious communities and persons that do not belong to any religious orientation.

Article 14.1.2 of the Law on Historic Centre of Prizren, foresees the establishment of the Cultural Heritage Committee by the Municipality of Prizren. The above-mentioned Committee is composed of seven (7) members, where the Islamic Community, the Serbian Orthodox Church and the Catholic Church select a member for representation in that Committee. Regarding the Article 24 [Equality Before the Law], the Applicants stated that the inclusion of three religious communities in the Law, clearly favours them compared to other religious communities and to citizens without religious affiliation and inter alia makes violation of Article 24 of the Constitution. In order to substantiate their allegations, the Applicants cited cases from the ECtHR case law, as well as a case from the case law of the US Supreme Court.

The Court concluded that the Applicants are authorized parties and the Referrals were submitted within legal time limit, they have met all criteria of requirements and, consequently, their Referrals are admissible.

Regarding the merits of the Referral, the Court reminded the Applicants that the Chapter III of the Constitution provides special protection to communities that traditionally were present in the territory of the Republic of Kosovo, and that the Chapter II, Article 45.3 provides that the state institutions support the possibility of every person to democratically influence on decision of public bodies. Furthermore, the Court noted that the laws that are passed in the Assembly have a constitutional basis for the broad mandate to provide for the consultative planning processes that are proposed in the Laws on the Village of Hoce e Madhe and the Historic Centre of Prizren. The Court further stated that although the Committees in both instances are given a large degree of consultative responsibility, they do not have executive powers and that the decisions on planning matters are ultimately taken, after the appropriate consultation, by the relevant Municipalities and not by the Committees established under both Laws. The Court also stated that paragraph 3 of Article 24 of the Constitution advances the rights of individuals and groups, who are in unequal position, while the Applicants read the paragraphs 1 and 2 of Article 24 of the Constitution, separately from paragraph 3 of the same Article.

The Court further noted that the cases from the case law, cited by the Applicants do not coincide to the rights of the religious communities to have a consultative voice in the decisions on planning that influence on the village Hoçë e Madhe and on Historic Center of Prizren, and that they do not assist them to argue that the Articles of the challenged laws are not in compliance with the Constitution. Due to the abovementioned reasons, the Court concluded that the Referral is admissible from the procedural-formal aspect; that the Article 4.3.3 of the Law on village Hoçë e Madhe is in compliance with the Constitution of Kosovo; that Article 14.1.2 of the Law on Historic Center of Prizren is in compliance with the Constitution of Kosovo; ordered that the Judgment is served on the parties and pursuant to Article 20.4 of the Law, is published in the Official Gazette; and declared that the Judgment is effective immediately.