Constitutional Court

KO61/20, Applicant: Uran Ismaili and 29 other deputies of the Assembly of the Republic of Kosovo

Constitutional review of Decision [no. 214/IV/2020] of 12 April 2020 of the Ministry of Health on declaring the Municipality of Prizren “quarantine zone”; and Decisions [no. 229/IV/2020], [no. 238/IV/2020], [no. 239/IV/2020] of 14 April 2020 of the Ministry of Health on preventing, fighting and eliminating infectious disease COVID-19 in the territory of the Municipalities of Prizren, Dragash and Istog 

KO61/20, Judgment of 1 May 2020, published on 5 May 2020

Key words: pandemic COVID-19, institutional referral, referral by 30 deputies, article 113.2 (1) of the Constitution, freedom of movement, limitations on fundamental rights and freedoms, prescribed by law, legitimate aim, proportionality, necessary in a democratic society, Government, Assembly.

On 17 April 2020, 30 deputies of the Assembly submitted Referral KO61/20 to the Court. Through this Referral, the Applicants requested the constitutional review of four (4) decisions of the Ministry of Health, namely: (i) Decision [no. 214/IV/2020] of 12 April 2020 of the Ministry of Health on declaring the Municipality of Prizren “quarantine zone”; (ii) Decision [no. 229/IV/2020] of 14 April 2020 of the Ministry of Health “on preventing, fighting and eliminating infectious disease COVID-19 in the territory of the Municipality of Prizren”; (iii) Decision [no. 238/IV/2020] of 14 April 2020 of the Ministry of Health “on preventing, fighting and eliminating infectious disease COVID-19 in the territory of the Municipality of Dragash”; (iv) Decision [no. 239/IV/2020] of 14 April 2020 of the Ministry of Health, “on preventing, fighting and eliminating infectious disease COVID-19 in the territory of the Municipality of Istog”.

The subject matter of the Referral is the constitutional review of the four (4) challenged decisions, which the Applicants allege that are not in compliance with Articles 35 [Freedom of Movement] and 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution) and Article 2 of Protocol no. 4 of the European Convention on Human Rights (hereinafter: ECHR). The Applicants also requested the imposition of the interim measure for the suspension of the challenged decisions.

Under heading VI – CONCLUSIONS – of this Judgment (see paragraphs 246-263), the Court summarized the essence of the case and stated the following:

On 31 March 2020, the Court decided on case KO54/20 through which Judgment, it declared Decision no.01/15 of the Government invalid, holding that the latter was in contradiction 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] of the Constitution and the equivalent articles of the ECHR, namely articles 8 (Right to respect for private and family life), 11 (Freedom of assembly and association), and 2 (Freedom of movement) of Protocol No. 4 of the ECHR.

Through the abovementioned Judgment, the Court emphasized that (i) the Government can only implement a law of the Assembly that limits a fundamental right and freedom, and only to the extent that the Assembly has authorized it through the respective law; and that (ii) the Ministry of Health, namely the Government, is authorized to issue decisions aimed at preventing and fighting the pandemics, only to the extent it is authorized through the Law no. 02/L-109 for Prevention and Fighting against Infectious Diseases and Law no. 04/L-125 on Health. The Court also stated that these two laws do not authorize the Ministry of Health, namely the Government, to limit the rights and freedoms guaranteed by the Constitution at the level of the entire Republic of Kosovo and for all the citizens of the Republic of Kosovo without exception.

Following Judgment KO54/20, on 14 April 2020, through thirty-eight (38) decisions for “prevention, fighting and elimination of the infectious disease COVID-19”, the Ministry of Health imposed limitations in all municipalities of Kosovo and for all citizens of the Republic of Kosovo. The Court in the present case, namely KO61/20, is not conducting a constitutional review of all thirty-eight (38) abovementioned Decisions, because the Applicants have not challenged all of them.

Only three (3) of them have been challenged before the Court, Decisions [No. 229/IV/2020]; [No. 238/IV/2020]; and [No. 239/IV/2020] of 14 April 2020, for the municipalities of Prizren, Dragash and Istog, respectively. In addition the three abovementioned decision, it is Decision [No. 214/IV/2020] of 12 April 2020 of the Ministry of Health declaring the Municipality of Prizren “quarantine zone”, has also been challenged before the Court.

Therefore, the constitutional question entailed in this Judgment, KO61/20, is the compatibility with articles 35 and 55 of the Constitution of the four (4) challenged Decisions of the Ministry of Health. The Court, in assessing their constitutionality, based on article 55 of the Constitution, the case-law of the Court, including the Judgment of the Court KO54/20, and the case-law of the ECtHR pertaining to article 2 of Protocol no. 4 of the ECHR, has reviewed whether the “interferences”, namely the limitations on the freedom of movement of the citizens in the municipalities of Prizren, Dragash and Istog, respectively (i) are “prescribed by law”, namely by the Law no. 02/L-109 for Prevention and Fighting against Infectious Diseases; (ii) pursue a “legitimate aim”; and (iii) are “necessary in a democratic society”.

Based on the examinations and assessments of the documents submitted to the Court and its case-law, the Court, unanimously, decided to declare Referral KO61/20 admissible for review on the merits, taking into account that all admissibility criteria established in the Constitution, the Law on the Constitutional Court and the Rules of Procedure, have been met.

The Court decided that the Decisions “for prevention, fighting and elimination of the infectious disease COVID-19” in the municipalities of Prizren, Dragash and Istog, respectively, are in compliance with the Constitution, with the exception of the respective points of the enacting clauses which determine the respective administrative minor offences, whereas it declared unconstitutional the Decision declaring the Prizren municipality a “quarantine zone”.

More precisely, the Court, unanimously, decided that: (i) Decision [No. 229/IV/2020] of 14 april 2020 of the Ministry of Health, “for prevention, fighting and elimination of the infectious disease COVID-19” in the municipality of Prizren (points I, II, III, IV, VI, VII and VIII); and (ii)  Decisions [No. 238/IV/2020] and [No. 239/IV/2020] of 14 April 2020 of the Ministry of Health, “for prevention, fighting and elimination of the infectious disease COVID-19” in the municipalities of Dragash and Istog (points I, II, III, V, VI and VII), respectively, are in compliance with article 55 of the Constitution in conjunction with article 35 of the Constitution and article 2 of Protocol No. 4 of the ECHR. Consequently, all the specified points of the three abovementioned Decisions, were declared constitutional by the Court.

The Court held, that in issuing the abovementioned Decisions, the Ministry of Health, has acted in compliance with the authorizations prescribed by the Law No. 02/L-109 for Prevention and Fighting against Infectious Diseases, and consequently the “interferences” with the right of freedom of movement of the citizens of the municipalities of Prizren, Dragash and Istog, through the abovementioned Decisions, were “prescribed by law”. The Court also found that the latter, pursue a “legitimate aim”, namely the one of the protection of “public health”, as foreseen in paragraph 3 of article 2 of Protocol no. 4 of the ECHR; are proportional in relation to “legitimate aim” pursued; and are “necessary in a democratic society”.

However, the Court, by majority, decided that: (i) item V of Decision [No. 229/IV/2020] of 14 April 2020 of the Ministry of Health, “for prevention, fighting and elimination of the infectious disease COVID-19” for the municipality of Prizren; and (ii) item IV of Decisions [No. 238/IV/2020] and [No. 239/IV/2020] of 14 April 2020 of the Ministry of Health, “for prevention, fighting and elimination of the infectious disease COVID-19” for the municipalities of Dragash and Istog, respectively, through which the administrative minor offences and the respective sanctions are determined, are not in compliance with article 55 of the Constitution in conjunction with article 35 of the Constitution and article 2 of Protocol No. 4 of the ECHR. The Court reasoned that in determining the non-compliance with the measures provided for by the abovementioned Decisions as “administrative minor offences”, the Ministry of Health exceeded the authorizations provided by Law No. 02/L-109 or Prevention and Fighting against Infectious Diseases. The Court stated that based on Law No. 05/L-087 on Minor Offences, the minor offenses and the respective sanctions must be determined only by law of the Assembly of the Republic or through acts of the Municipal Assemblies, and that this authorization may not be delegated to other bodies. Consequently, the administrative minor offenses determined through these three challenged Decisions, are not “prescribed by law” and consequently, are declared unconstitutional.

The Court, on the other hand, decided, by majority, that Decision [No. 214/IV/2020] of 12 April 2020 of the Ministry of Health, declaring the Municipality of Prizren “quarantine zone”, is not in compliance with articles 35 and 55 of the Constitution and article 2 of Protocol no. 4 of the ECHR. The Court held, that in issuing this Decision, the Ministry of Health has exceeded the authorizations provided by Law no. 02/L-109 for Prevention and Fighting against Infectious Diseases, and consequently the “interferences” with the right of freedom of movement of the citizens, through the quarantine of the entire municipality of Prizren, are not “prescribed by law”. The Court clarified that the “quarantine” according to Law no. 02/L-109 for Prevention and Fighting against Infectious Diseases, may be ordered by the Ministry of Health, following the recommendation by NIPHK, only for natural persons which are confirmed or suspected to have been in direct contact with the sick persons or suspected of infectious disease. Therefore, the Decision declaring entire municipality of Prizren a “quarantine area”, was declared unconstitutional.

Pertaining to the request for interim measure, the Court held that following the decision of the judges to decide the merits of the case in their entirety, and to render this Judgment, the interim measure remained without a subject of review.

The Court also recalled that, by Judgment KO54/20, it had set another date for the entry into force of its Judgment, namely 13 April 2020, emphasizing that until that date, the relevant institutions of the Republic of Kosovo, in the first place, the Assembly, must take appropriate measures to ensure that the necessary limitations on fundamental rights and freedoms in order to preserve the public health, are made in accordance with the Constitution and Judgment KO54/20.

In addition, the Court emphasizes that despite the specific request addressed to the Assembly requesting information “regarding all the steps taken by the Assembly of the Republic of Kosovo after the publication of Judgment KO54/20 of 31 March 2020”, the Court did not receive a response from the Assembly. In this regard, the Court initially emphasized the fact that it is a legal obligation of all public authorities “to support the work of the Constitutional Court and to cooperate with the Constitutional Court upon request of the Constitutional Court”. Furthermore, the Court emphasized that based on Judgment KO54/20, the Assembly was obliged, either through amendment of existing applicable legislation or through the adoption of a new law, to determine the most appropriate mechanisms and the corresponding authorizations, for the competent authorities, including the Ministry of Health, namely the Government, to take the appropriate and necessary measures designed to fight and prevent COVID-19 pandemics, in a manner compliant with the Constitution and Judgment KO54/20. In this aspect, the Court also emphasized article 116 [Legal Effect of Decisions] of the Constitution, based on which, the decisions of the Constitutional Court are binding on the judiciary and all persons and institutions of the Republic of Kosovo.

In Judgment KO61/20, the Court also addressed the submission of 23 April 2020 of the Acting Prime Minister, submitted to the Court on behalf of the Government, entitled “submission regarding non-compliance with the legal deadlines and the Rules of Procedure of the Constitutional Court by the Constitutional Court in case no. KO61/20”. Through this submission the Government expressed its “concerns” pertaining to ”violation of essential provisions regarding the procedure and deadlines to be followed” by the Court, while also emphasizing that the “Government will carefully review the legal violations so far and, depending on their legal qualifications, will take the necessary actions based on the legislation in force”.

The Court has shared this submission, same as other submissions, with all the interested parties in this case. The submission will also be published on its entirety together with Judgment KO61/20, which will also contain the necessary clarifications pertaining to this submission. Nevertheless, the Court strongly emphasizes that the Government’s approach towards the Constitutional Court reflected through this submission, is unacceptable and contrary to the fundamental values of the Constitution of the Republic.

The Court emphasizes that it is an independent body established to protect the Constitution and it is the final interpreter of the Constitution. The Court recalls that the Constitution attributes to it full independence in the performance of its responsibilities. Furthermore, it is a constitutional obligation of the Government and all institutions of the Republic, not to interfere with this independence. The Court also reminds the Government that the Constitution does not attribute to it any competence regarding the decision-making of the judicial power. Respecting the basic constitutional values, pertaining to the separation of powers, the independence of the justice system, the independence and authority of the Constitutional Court and the protection of the rule of law, is a constitutional obligation of all branches of government of the Republic of Kosovo.

Finally, the Court emphasizes the fact that regardless of the situation created with pandemic COVID-19, and which has affected the entire world, the state of law and rule of law, must prevail. This is also emphasized by the Council of Europe in the Information Document SG/Inf(2020)11 of 7 April 2020 on Respecting democracy, rule of law and human rights  in the framework of the COVID-19 sanitary crisis, but also in the Opinions of the Venice Commission, including the one on Protection of Human Rights in Emergency Situations and the Rule of Law Checklist. All institutions of the Republic are obliged to act in full compliance with the respective constitutional and legal competences and in compliance with the Judgments of the Court.