Decisions from the review session held on 29 July 2019

In the review session held on 29 July 2019, the Constitutional Court of the Republic of Kosovo reviewed and decided on the following referrals: 1. KI 19/19 and KI 20/19; 2. KO 65/19; 3. KO 58/19; 4. KI 187/18 and KI 11/19; 5. KI 128/17 and 6. 133/17.  Below you may read the brief summaries of the decisions of the Court (full texts of resolutions and judgments will be handed over to the parties, will be published on the website of the Court and in the Official Gazette during the following days):

1. Resolution
Case: KI 19/19 and KI 20/19
Applicant: Muhamet Thaqi and Egzon Keqa

Subject matter of the referral was constitutional review of the Decision of the Supreme Court [Pml.nr.259/2018, of 5 November 2019, in relation to the Judgment of the Court of Appeals [PA1.nr.748/2018], of 13 August 2018, whereby it was alleged that applicant’s fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo in conjunction with Article 6 (Right to a Fair Trial) of the European Convention on Human Rights were violated.
The referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Referrals] of the Law on the Constitutional Court (no. 03/L-121) and Rules 32 [Filing of Referrals and Replies] and 56 [Request for Interim Measure] of the Rules of Procedure of the Constitutional Court.
– The Court, pursuant to Article 113.7 of the Constitution, Articles 20, 47 and 49 of the Law on the Constitutional Court and Rules 39 (1) (c), 39 (2), 57 (1) and 59 (2) of the Rules of Procedure, unanimously decided:
I. TO DECLARE the referrals inadmissible;
II. TO REJECT the request for interim measure.

2. Judgment
Case: KO 65/19
Applicant: Ombudsperson

Subject matter of the referral was constitutional review of challenged articles of Law No. 06/L-010 on Notary, for which the Applicant claimed that they are not in compliance with Article 5 [Languages] and paragraphs 1 and 3 of Article 46 [Protection of Property] of the Constitution of the Republic of Kosovo. The Applicant further requested the Constitutional Court to impose interim measure and to suspend the implementation of the challenged articles until the final decision of the Court, claiming that “the referral is prima facie grounded, and that the challenged articles of the challenged law cause irreparable damages to certain subject …”.
The referral was based on paragraph 2, sub-paragraph 1 of Article 113 (Jurisdiction and Authorized Parties) and paragraphs 1 and 2, of Article 116 (Legal Effect of Decisions) of the Constitution, Articles 22, 27, 29 and 30 of the Constitutional Court (no. 03/L-121), and Rules 32, 56 and 57 of the Rules of Procedure of the Constitutional Court.
– The Court, pursuant to Articles 13. 2 (1) and 116. 2 of the Constitution, Articles 27 (1), 29 and 30 of the Law on the Constitutional Court and based on Rules 29, 56 (1), 57 and 59 (1) of the Rules of Procedure, decided:
I. TO DECLARE unanimously the referral admissible;
II. TO HOLD unanimously that the challenged articles 32 (paragraph 1), article 41 (paragraphs 1.3 and 1.4), article 2 (paragraph 7) and article 22 (paragraph 1.3) of Law No. 06/010 on Notary, are not in contradiction with Article 5 [Languages], and 46 [Protection of Property] of the Constitution;
III. TO HOLD by majority that Article 76 (paragraph 2) is not in contradiction with Article 5 [Languages], and 46 [Protection of Property] of the Constitution;
IV. TO REVOKE the decision on imposing interim measure, of 20 May 2019, extended on 19 July 2019, in relation to Article 76 (paragraph 2), Article 2 (paragraph 7) and Article 22 (paragraph 1.3) of Law No. 06/10 on Notary.

3. Judgment
Case: KO 58/19
Applicant: Bilall Sherifi and 29 other deputies of the Assembly of the Republic of Kosovo

Subject matter of the referral was constitutional review of decisions of the President of the Republic of Kosovo for appointment of the members of the Central Election Commission of the Republic of Kosovo (see below):

1. Decision No. 57/2019, of 28 March 2019, for the appointment of Mr. Čemajl Kurtiši as a member of the CEC from the Bosnian community;
2. Decision No. 58/2019, of 28 March 2019, for the appointment of Mr. Stevan Veselinović as a member of the CEC from the Serbian community;
3. Decision No. 59/2019, of 28 March 2019, for the appointment of Mr. Ercan Şpat as a member of the CEC from the Turkish community;
4. Decision No. 60/2019, of 28 March 2019, for the appointment of Mr. Alfred Kinolli as a member of the CEC from the Roma, Ashkali and Egyptian community;
5. Decision No. 61/2019, of 28 March 2019, for the appointment of Mrs. Nazlie Bala as a member of the CEC;
6. Decision No. 61/2019, of 28 March 2019, for the appointment of Mr. Adnan Rrustemi as a member of the CEC;
7. Decision No. 63/2019, of 28 March 2019, for the appointment of Mr. Florian Dushi as a member of the CEC;
8. Decision No. 65/2019, of 28 March 2019, for the appointment of Mr. Sami Hamiti as a member of the CEC.

for which the Applicants alleged that are not in compliance with paragraph 4 of Article 139 [Central Election Commission] of the Constitution of the Republic of Kosovo.
The Referral was based on Article 113, paragraph 2, subparagraph 1 [Jurisdiction and Authorized Parties] of the Constitution, Articles 29 [Accuracy of the Referral] and 30 [Deadlines] of the Law on the Constitutional Court (no. 03/L-121) and Rules 32 [Filing of Referrals and Replies] and 67 [in compliance with Article 113.2 (1) and (2) of the Constitution and Articles 29 and 30 of the Law on the Constitutional Court] of the Rules of Procedure of the Constitutional Court.
– The Court, pursuant to Article 113, paragraph 2 subparagraph 1 of the Constitution, Articles 29 and 30 of the Law on the Constitutional Court and Rules 59 (a) and 67 of the Rules of Procedure, decided:
I. TO DECLARE the Referral admissible for consideration in merits;
II. TO HOLD that Decision No. 57/2019, Decision no. 58/2019, Decision no. 59/2019, Decision no. 60/2019, Decision no. 61/2019, Decision no. 62/2019, Decision no. 63/2019, Decision no. 65/2019, of 28 March 2019, of the President of the Republic of Kosovo, are not in contradiction with paragraph 4 of Article 139 [Central Election Commission] of the Constitution.

4. Judgment
Case: KI 187/18 and KI 11/19
Applicant: Muhamet Idrizi

Subject matter of the referral was constitutional review of Judgment of the Supreme Court of Kosovo [PML. nr. 226/2018], of 16 October 2018, and Judgment of the Supreme Court of Kosovo [PML. nr. 293/2018], of 3 December 2018.
In Referral KI187/18, the Applicant has not specifically clarified what fundamental rights and freedoms guaranteed by the Constitution of the Republic of Kosovo he claims to have been violated by the challenged judgment. While through Referral KI11/19, the Applicant alleged that the regular courts have violated his fundamental rights and freedoms guaranteed by Articles 30 [Rights of the Accused] and 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a Fair Trial) of the European Convention on Human Rights. The Applicant also asked the Constitutional Court to impose an interim measure, namely “to prohibit beginning of the serving the sentence imposed [against on him] with Judgment PKR no. 107/2012, of 22 November 2017, of the Basic Court in Gjilan”, until this Court brings the decision.
The Referral was based on paragraph 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of the Law on the Constitutional Court (no. 03/L-121) and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, pursuant to Article 113.7 of the Constitution, Articles 20 and 47 of the Law on the Constitutional Court and Rule 59 (a) of the Rules of Procedure, decided:
I. TO DECLARE Referral KI187/18 inadmissible;
II. TO DECLARE Referral KI11/19 admissible for consideration in merits;
III. TO HOLD that Judgment PML. nr.293/2018 of the Supreme Court, of 3 December 2018, contained breach of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with paragraph 1 of Article 6 [Right to a Fair Trial] of the European Convention on Human Rights.
IV. TO DECLARE Judgment PML. nr.293/2018 of the Supreme Court of Kosovo, of 3 December 2018, invalid.
V. TO REMAND Judgment PML. nr.293/2018 of the Supreme Court of Kosovo, of 3 December 2018, on retrial in accordance with the Judgment of this Court.
VI. TO ORDER the Supreme Court, in accordance with Rule 66 (4) of the Rules of Procedure, to notify the Court, within 6 (six) months from the date of publication of this Judgment, in relation to the measures undertaken for the implementation of the Judgment of this Court;
VII. TO REJECT the request to impose interim measure.

5. Judgment
Case: KI 128/17
Applicant: Naser Husaj

Subject matter of the referral was constitutional review of the Judgment of the Supreme Court [Rev. nr. 170/2017], of 23 August 2017, whereby it was alleged that Applicant’s fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo in conjunction with Article 6 (Right to a Fair Trial) of the European Convention on Human Rights were violated.
The Referral was based on paragraph 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of the Law on the Constitutional Court (no. 03/L-121) and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, pursuant to Article 113.7 of the Constitution, Articles 47 and 48 of the Law on the Constitutional Court and Rule 59 (1) of the Rules of Procedure, unanimously decided:
I. TO DECLARE the referral admissible;
II. TO HOLD that Judgment [Rev. Nr. 170/2017] of the Supreme Court, of 23 August 2017, is in compliance with Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 [Right to a Fair Trial] of the ECHR.

6. Resolution
Case: KI 133/17
Applicant: Ali Gashi

Subject matter of the referral was constitutional review of the Decision of the Supreme Court of Kosovo [Rev. nr. 96/2017], of 1 June 2017, in relation to the Judgment of the Court of Appeals [CA. nr. 902/2014], of 7 February 2017, and the Judgment of the Basic Court [C. nr. 432/13], of 24 January 2014.
The Referral was based on paragraph 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of the Law on the Constitutional Court (no. 03/L-121) and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court decided that the Referral is inadmissible in accordance with Article 113.7 of the Constitution, Article 47 and 49 of the Law on the Constitutional Court and Rule 39 (3) (b) and 57 (1) of the Rules of Procedure.