Announcement on the Judgments KI01/18 and KI48/18
04.02.2019The Constitutional Court of the Republic of Kosovo has decided in cases KI01/18 [submitted by: Gani Dreshaj and Alliance for Future of Kosovo (AAK)] dhe KI48/18 [submitted by: Arban Abrashi and Democratic League of Kosovo (LDK)], in the session held on 23 January 2019.
The Constitutional Court unanimously declared both Referrals admissible for review on merits after finding that the Applicants were authorized parties; challenged decisions of public authorities; have exhausted legal remedies as elaborated in the respective Judgments; have specified the fundamental rights and freedoms which have allegedly been violated; have submitted the Referrals within the deadline; the Referrals was not manifestly ill-founded; and the Court found no other admissibility requirement which was not fulfilled. As a result, the Referrals passed the admissibility test and were declared admissible for review on merits.
– Regarding Referral KI01/18, requested the Court to assess the constitutionality of the decisions of the CEC, ECAP and Supreme Court, which, allegedly, violated their rights guaranteed by Article 45 [Freedom of Election and Participation] of the Constitution of the Republic of Kosovo in conjunction with Article 3 (Right to free elections) of Protocol no. 1 to the ECHR. The Applicants essentially complained that because of not counting 52 voters’ votes in the second round of elections, valid for the election of the Mayor of Istog, the right of their candidate (Gani Dreshaj) to be elected has been violated, as guaranteed by Article 45 of the Constitution in conjunction with Article 3 of Protocol no. 1 to the ECHR.
The Court notes that the present case addresses the issues of interconnection of active election rights with passive election rights, update of election lists between the two rounds of elections and disputes of counting the votes in the count centers that matched the post-election period.
The Court, based on the European Court of Human Rights (ECtHR) consolidated case law, decided to assess whether the challenged decisions of the CEC, ECAP and the Supreme Court could withstand the ECtHR test that determines whether those decisions: (i) are in compliance and provided for by applicable law; (ii) whether they are proportionate; and (iii) whether they are arbitrary or unreasonable. However, the Court first held that the legal framework regulating the election right in the Republic of Kosovo is not subject to constitutional review in the concrete case and that its assessment is limited only within the framework of the allegations raised in the present case.
The Court further found that: (i) the non-update of voter lists was a fact known by all participants in the electoral race-including the Applicants; and (ii) the counting of 52 (fifty-two) voters’ votes does not have such an extent to guarantee the vote of a certain group of voters – moreover, when it is taken into account that none of those voters had complained to the competent bodies because of not counting their votes.
The Court, by providing a thorough assessment of all central issues of the present case, considered that the challenged decisions of the CEC, ECAP and Supreme Court are in compliance and are provided for by the applicable election law, are proportionate – and are not arbitrary or unreasonable. Therefore, the Court unanimously concluded that the challenged decisions of ECAP and of the Supreme Court are in compliance with Article 45 of the Constitution in conjunction with Article 3 of Protocol no. 1 to the ECHR. The Court also rejected the Applicants’ request for interim measure.
– Regarding Referral KI48/18, the Applicants, in essence, alleged that the Supreme Court, but also the ECAP, in the proceedings for the review of their complaints and appeals failed to provide judicial protection of their rights guaranteed by Article 54 [Judicial Protection of Rights] of the Constitution and, accordingly, the decisions of these public authorities have resulted in the violation of their rights for freedom of election and participation as guaranteed by Article 45 [Freedom of Election and Participation] of the Constitution.
Before considering the merits of the case, the Court addressed the issue of its jurisdiction pertaining to electoral disputes. In this respect, the Court clarified its constitutional competence as it pertains to individual referrals related to electoral disputes, emphasizing that the Court is limited to paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, namely, to assessing whether an act of a public authority may have violated the respective fundamental rights and freedoms of an individual, after the exhaustion of all legal remedies as provided by law.
The Court then dealt with all the Applicants’ allegations separately and in their entirety, applying into this assessment: (i) the constitutional guarantees related to the challenged rights, namely Articles 45 and 54 of the Constitution; (ii) the underlying principles resulting from the European heritage for democratic elections as summarized by the Venice Commission; and (iii) the case-law of the European Court of Human Rights (ECtHR).
Following the application of these guarantees, principles and tests established through the ECtHR case-law, the Court unanimously held that the challenged decisions of the Supreme Court did not violate the Applicants’ rights to judicial protection of rights guaranteed by Article 54 of the Constitution and the right to a legal remedy guaranteed by Article 32 of the Constitution in conjunction with the right to an effective remedy guaranteed by Article 13 of the European Convention on Human Rights (ECHR), because in the circumstances of the present case, the Supreme Court has correctly assessed the issues pertaining to: (i) confirmation/cancelation of the election results; (ii) declaring as out of time the Applicants’ allegations pertaining to irregularities on the election day, and which were submitted to the ECAP for the first time after the announcement of the final election results; and (iii) invalid and blank ballots, after the ECAP investigated the election material in the contested polling stations and did not find that “the final election results were affected”. In addition, the decisions of the Supreme Court were “sufficiently reasoned” pertaining to the Applicants’ allegations and are in conformity with the standards established through the case-law of the ECtHR and the Venice Commission as to the reasoning of decisions in electoral disputes. The findings of the Supreme Court, are in compliance with the constitutional guarantees, the relevant case-law of the ECtHR and the basic principles of the Venice Commission as it pertains to “an effective system of appeal” as an integral part of the “procedural guarantees”, which is a fundamental condition for the implementation of the five underlying principles pertaining to the qualities of the vote.
The Court unanimously held the challenged decisions of the Supreme Court have not violated the Applicants’ rights pertaining to the freedom of election and participation guaranteed by Article 45 of the Constitution in conjunction with the right to free elections guaranteed by Article 3 of Protocol nr. 1 of the ECHR because, in the circumstances of the present case, these decisions have not been rendered in contradiction with: (i) any of the conditions for the implementation of the underlying principles on the qualities of the vote, as guaranteed by the Constitution, the election laws and the Code of Good Practice of the Venice Commission; (ii) any of the “procedural guarantees” for the implementation of the “free suffrage” and “equal suffrage” principles; (iii) the “principle of transparency” in electoral disputes as established by the ECtHR case-law and the underlying principles of the Venice Commission; and (iv) the ECtHR case-law in the context of the “post-electoral rights”.
The Court also unanimously rejected the Applicant’s request for a hearing, because it did not consider that there is any ambiguity about “evidence or law”. The Court found that the documents contained in the Referral are sufficient to establish the merits of this case.
Therefore, the Court unanimously held that: (i) Decision [AA. No. 52/2017] of 25 November 2017 of the Supreme Court was not rendered in violation of the fundamental rights and freedoms of the political entity LDK, and is in compliance with the fundamental rights and freedoms guaranteed by Articles 45 and 54 of the Constitution; and that (ii) Judgment [A.A.U.ZH. No. 62/2017] of 7 December 2017 of the Supreme Court was not rendered in violation of the fundamental rights and freedoms of Mr. Arban Abrashi and of the political entity LDK, and is in compliance with their fundamental rights and freedoms guaranteed by Articles 45 and 54 of the Constitution.
The Judgments have been published in the official web-site of the Court and can be read by clicking in the links below: