Constitutional Court

KO12/18, Applicants: Albulena Haxhiu and 30 other deputies of the Assembly of the Republic of Kosovo, Constitutional Review of Decision No. 04/20 of the Government of the Republic of Kosovo, of 20 December 2017

KO12/18, Judgment adopted on 29 May 2018, published on 11 June 2018

 Keywords: abstract control, institutional referral, separation of powers, constitutional powers, budget implications, conflict of interest, equality before the law

The Applicants submitted the Referral to the Constitutional Court for a constitutional review of Decision No. 04/20 of the Government. The Applicants allege that the decision mentioned above is not in compliance with Articles 3 [Equality Before the Law], 4 [Form of Government and Separation of Power], 7 [Values], 65 [Competencies of the Assembly], 92 [General Principles] and 93 [Competencies of the Government] of the Constitution of the Republic of Kosovo.

The Constitutional Court declared the Referral admissible for review after finding that the issues raised in the Referral are of such a complexity that their determination should depend on the consideration of the merits and that the Referral cannot be considered as manifestly ill-founded within the meaning of Rule 36 (1) (d) of the Rules of Procedure.

After reviewing the Applicants’ allegations and arguments, the Constitutional Court emphasized: (i) it has not been proven that the decision for increase of wages constitutes issues at the constitutional level; (ii) based on the presented arguments, it does not result that the exercise of the constitutional powers for the approval and execution of the state budget has been violated or made impossible  to the Assembly; (iii) as far as the conflict of interest is concerned, it is not within the function of the Court to assess the allegations of contravention of the challenged decision with the Law on Prevention of Conflict of Interest in the Exercise of Public Function, because that issue falls under the jurisdiction of other bodies determined by the Constitution; and (iv) as regards the violations of Articles 3 [Equality Before the Law] and 7 [Values] of the Constitution, the Applicants have not provided convincing facts that the salaries foreseen in the challenged Decision treat similar positions or situations differently and whether this change in treatment does not have any objective and reasonable justification. The Court further added that it is not within its scope to assess or replace public policies determined by the legislative or executive body. The principle of separation of powers obliges the Constitutional Court to respect the determination of policies by the respective constitutional bodies. Basic policy-making decisions on the governance of the country should be taken by the constitutional bodies with democratic legitimacy, namely by the Assembly and the Government. Those bodies – due to their nature and democratic legitimacy – are in a better position than the Constitutional Court to determine and advance the budget, economic and social policies of the country.

In this regard, the Constitutional Court considered that the Applicants did not submit convincing evidence to support their allegations that the challenged decision of the Government produced constitutional effects in respect of violating the constitutional powers of the Assembly or violating any constitutional provision, as the Applicants allege. However, the Court noted that the sub-legal acts of the Government must comply with the Constitution and the laws. Furthermore, the Court emphasized that, in accordance with the executive nature of its constitutional powers, the Government is obliged to execute the state budget approved by the Assembly. Therefore, it is the obligation of the Government to support the implementation of the challenged decision in the budget allocations set out in the Budget of 2018 and in the relevant laws.

Finally, the Constitutional Court, pursuant to Article 113.2 (1) and 116.2 of the Constitution, Articles 27 (1), 29 and 30 of the Law and in accordance with Rules 29, 54, 55 and 56 (1) of the Rules of Procedure, found that Decision No. 20/14 of the Government of the Republic of Kosovo of 20 December 2017 is not in contradiction with the alleged Articles of the Constitution.