Constitutional Court

KO54/20, Applicant: The President of the Republic of Kosovo, Constitutional Review of Decision No. 01/15 of the Government of the Republic of Kosovo, of 23 March 2020

KO54/20, Judgment of 31 March 2020, published on 6 April 2020  

Key words: Institutional Referral, Article 113.2 (1) of the Constitution, freedom of movement, freedom of gathering, right to privacy, limitation without being “prescribed by law”, Government, Assembly, President, difference between Article 55 and Article 56, limitation vs. derogation

On 24 March 2020, the President submitted Referral KO54/20 to the Court. Through this Referral, the President requested a constitutional review of the Decision [no. 01/15 of 23 March 2020] of the Government and the imposition of the interim measure against the challenged Decision of the Government.

The subject matter of the Referral was the constitutional review of the challenged Decision of the Government, which according to the Applicant’s allegation is not in compliance with Articles: 21 [General Principles], 22 [Direct Applicability of International Agreements and Instruments], 35 [Freedom of Movement], 43 [Freedom of Gathering], 55 [Limitations on Fundamental Rights and Freedoms] and 56 [Fundamental Rights and Freedoms During a State of Emergency] of the Constitution of the Republic of Kosovo, and Article 2 [Freedom of movement] of Protocol No. 4 of the European Convention on Human Rights, Article 13 of the Universal Declaration of Human Rights, as well as Article 12 of the International Covenant on Civil and Political Rights.

Under the heading VII – CONCLUSIONS – of this Judgment (see paragraphs 310-325), the Court summarized the essence of the case and stated the following:

As a preliminary issue, the Court in this Judgment clarified that it is not its role to assess whether the measures taken by the Government to prevent and combat the COVID-19 pandemic are adequate and appropriate. Moreover, the Court notes that the need to take measures and their necessity has not been challenged by either party in this case. Defining public health policies does not fall within the competences and authorizations of the Constitutional Court. In matters of public health, the Constitutional Court itself also refers and obeys to relevant health and professional institutions at the state and world level.

The constitutional question that this Judgment entails is the compatibility with the Constitution of the challenged Decision of the Government, namely whether by its issuance the Government has limited the fundamental rights and freedoms guaranteed by the Constitution in accordance with the law or beyond the powers provided by law. In this context, regarding the assessment of whether the restrictions made at the level of the entire Republic of Kosovo by the challenged Decision of the Government are prescribed by law, the Court has focused on the assessment of the powers established in Articles 41 and 44 of Law No. 02/L-109 for Prevention and Fighting against Infectious Diseases and Articles 12 (1.11) and 89 of Law No. 04/L-125 on Health.

In this regard, the Court considered: (i) the Applicant’s Referral and the allegations presented in this Referral; (ii) the comments submitted by the Government and other interested parties; (iii) the case law of the ECtHR and, in particular, general principles on the applicability of the criterion “prescribed by law” as regards the restriction of fundamental rights and freedoms; and (v) the case law of the Constitutional Court itself.

Based on the foregoing considerations and assessments, the Court, unanimously, decided to declare Referral KO54/20 admissible for review on merits since, in the circumstances of the present case, all the admissibility requirements established in the Constitution, the Law on the Constitutional Court and the Rules of Procedure were fulfilled.

The Court also unanimously decided that Decision [No. 01/15] of the Government of 23 March 2020 is incompatible with Article 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution in conjunction with Articles 35 [Freedom of Movement], 36 [Right to Privacy], 43 [Freedom of Gathering] and Article 2 (Freedom of movement) of Protocol no. 4, Article 8 (Right to respect for private and family life) and Article 11 (Freedom of assembly and association) of the ECHR.

The Court held that the limitations contained in the challenged Decision of the Government regarding the constitutional rights and fundamental freedoms referred to above, are not “prescribed by law”, and therefore are contrary to the guarantees contained in Articles 35, 36 and 43 of the Constitution in conjunction with the respective Articles of the ECHR, and Article 55 of the Constitution, which in its first paragraph clearly states that the fundamental rights and freedoms guaranteed by this Constitution may only be limited by law.

The Court reiterates the fact that the challenged Decision of the Government refers to the implementation of the two abovementioned laws, which authorize the Ministry of Health to take certain measures in those laws in order to prevent and combat the infectious diseases. However, the Court held that the abovementioned laws do not authorize the Government to limit the constitutional rights and freedoms provided in Articles 35, 36 and 43 of the Constitution at the level of the entire Republic of Kosovo and for all citizens of the Republic of Kosovo without exception.

In this respect, the Court found that the restrictions imposed through the challenged Decision: (i) regarding the freedom of movement and gathering  established in Articles 35 and 43 of the Constitution, exceed the limitations permitted by the abovementioned law adopted by the Assembly ; and (ii) related to “gatherings in all settings – private and public, open or closed” which incorporate aspects of the rights guaranteed by Article 36 of the Constitution, are not based on any of the authorizations set forth in the aforementioned law or any other law of the Assembly.

The Court clarified that the Government cannot restrict any fundamental right and freedom through decisions unless a restriction of the relevant right is provided by the law of the Assembly. The Government can only enforce a law of the Assembly that restricts a fundamental right and freedom only to the specific extent authorized by the Assembly through the relevant law.

With regard to the Applicant’s allegations of a violation of Article 56 [Fundamental Rights and Freedoms During a State of Emergency] of the Constitution, the Court held that this Article is not applicable in the circumstances of the present case, since it is applicable only following the declaration of a State of Emergency.

However, with regard to the disagreement between the parties to the dispute, the President and the Government, over the meaning of the constitutional terms “limitation” and “derogation” that appear in Articles 55 and 56 of the Constitution, the Court clarified that the “limitation” of human rights and freedoms can be made “only by law” of the Assembly, but this does not mean that the “limitation” of rights can only be made through and after the declaration of a State of Emergency. The Court also clarified that the term “limitation” used in Article 55 of the Constitution implies the fact that the Assembly has the right to limit the  fundamental rights and freedoms, through law, but only insofar  and to the extent necessary in order that in an open and democratic society, fulfills the purpose for which the limitation is allowed. In other words, “limitation” implies a lighter degree of interference and this can be done even without declaration of a State of Emergency; whereas “derogation” implies a more severe degree of interference since it can never be done without a declaration of a State of Emergency.

As to the request for interim measures, the Court finds that following the unanimous decision of the judges to decide in their entirety the merits of the case and to render this Judgment, the latter remains without subject.

In accordance with Articles 116.3 of the Constitution, Article 20.5 of the Law on the Constitutional Court and Rule 60 (5) of the Rules of Procedure, the Court set the date 13 April 2020 as the date of entry into force of this Judgment, namely the repeal of the challenged Decision of the Government.

The Court has set another date of entry into force of its Judgment, namely 13 April, 2020 exceptionally and having regard to: (i) the circumstances created by the declaration of the COVID-19 pandemic at the world level; (ii) relevant recommendations of the health institutions at the state and world level; (iii) the potentially harmful effects on public health as a result of the immediate repeal of the restrictions provided by the Decision of the Government; and (iv) the protection of public health and interest until the enforcement of this Judgment by the relevant institutions of the Republic of Kosovo.

During this period of time and within the meaning of Article 55 of the Constitution regarding the “limitation” of fundamental rights and freedoms, the relevant institutions of the Republic of Kosovo, and, in the first place, the Assembly, should take appropriate measures to ensure that the necessary limitations on fundamental rights and freedoms in order to safeguard public health have been made in accordance with the Constitution and this Judgment.

Finally, the Court also notes that the Ministry of Health, namely the Government, continues to be authorized to render decisions with an aim of preventing and combating the pandemic, insofar as it is authorized by Law No. 02/L-109 for Prevention and Fighting against Infectious Diseases and Law No. 04/L-125 on Health.