Constitutional Court

KI207/19, Applicant, the Social Democratic INITIATIVE, New Kosovo Alliance and the Justice Party, Constitutional Review of Judgments [A.A.U.ZH. No. 20/2019, 30 October 2019; and A.A.U.ZH. No. 21/2019, of 5 November 2019] of the Supreme Court of the Republic of Kosovo 

KI207/19, Judgment adopted on 10 December 2020

Keywords: individual referral, constitutional review, election rights, votes from abroad, restriction of election rights

The Referral was based on paragraph 4 of Article 21 [General Principles] and paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo. The subject matter of the Referral was the constitutional review of the judgments [AAUZH. No. 20/2019] of the Supreme Court of Kosovo of 30 October 2019 and [AAUZH. No. 21/2019] of 5 November 2019, which, according to the Applicant’s allegations, violate the rights guaranteed by Article 7 [Rule of Law], paragraph 1 of Article 31 [Right to Fair and Impartial Trial] and Article 45 [Freedom of Election and Participation] of the Constitution of the Republic of Kosovo, in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights, the Applicant also requested the imposition of an interim measure which would prohibit certification “[…] of the elections [of 6 October 2019] until a final decision […] regarding the main request” of the case in question.

In the title – CONCLUSIONS – of this Judgment, the Court summarized the essence of the case and emphasized the following:

Referral KI207/19 was submitted by the Coalition “NISMA-AKR-PD after the early elections to the Assembly of 6 October 2019. In particular, this case concerned the ”Voting from Abroad” conducted by citizens of the Republic of Kosovo by mail service from various countries outside Kosovo.

The constitutional issue contained in the Referral in question is the compliance with the Constitution and the ECHR of the two challenged decisions of the Supreme Court, namely the Judgment [AAUZH. No. 20/2019] of 30 October 2019 and the Judgment [AAUZH. No. 21/2019] of 5 November 2019. Specifically, if the decision of the Supreme Court that the votes from abroad should be counted despite the fact that they had arrived at the CEC after the deadline of twenty-four (24) hours from the day of elections specified in Article 96.2 of the LGE in conjunction with Article 4.4. of Election Rule no. 03/2013, was contrary to: (i) Article 7 [Values] of the Constitution; (ii) paragraph 1 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 ECHR; and, (iii) Article 45 [Freedom of Election and Participation] of the Constitution in conjunction with Article 3 (Right to free elections), of Protocol No. 1 of the ECHR.

According to the facts of the case, the ECAP by Decisions [A. No. 375-2/2019 of 28 October 2019; and A. No. 381/2019 of 3 November 2019] concluded that the CEC, according to the LGE, should not count the packages received after the legal deadline nor include them in the final result. Meanwhile, afterwards, the Supreme Court annulled the decision-making of the ECAP and found that although the fact that the votes arrived after the legal deadline remains, the CEC should count those votes and include them in the final result. The Supreme Court considered that the legal norm that determines the deadline, namely Article 96.2 of the LGE and Article 4.4 of the Election Rule No. 03/2013 is a legal norm in “collision” with Article 3 of Protocol No. 1 of the ECHR and that consequently the CEC should be ordered to count the packages in question despite the fact that they arrived after the legal deadline. After the CEC implemented the challenged decisions of the Supreme Court, the election result certified by the CEC on 27 November 2019, includes also the votes counted from the contested packages that had arrived after the legal deadline.

The Applicants also alleged that the Supreme Court, contrary to the Constitution, decided to apply directly the international instruments contained in Article 22 of the Constitution and not Article 96.2 of the LGE and Article 4.4 of Election Rule No. 03/2013. They also alleged that the regular courts do not have the right to directly apply the constitutional norms and/or international instruments provided for in Article 22 of the Constitution, as well as to interpret the legal norms in harmony and according to the obligations arising from the constitutional norms, as in such cases there is a binding obligation under Article 113.8 of the Constitution to refer the matter to the Constitutional Court whenever the question of the constitutionality of legal norms is raised.

The Court, while dealing with the Applicant’s allegations, initially found that according to the interpretation of Article 102.3 of the Constitution, in conjunction with Article 112.1 of the Constitution and according to the case law of the Constitutional Court, the latter considers that the right and obligation to apply and interpret the Constitution, is recognized to all courts of the Republic of Kosovo and all public authorities in the Republic of Kosovo.

However, the Court strongly reiterated that the competence to “hold” the unconstitutionality of a legal norm and to “repeal” a legal norm as incompatible with the Constitution is the exclusive competence of the Constitutional Court. Thus, despite the fact that the Constitution recognizes the competence of regular courts to interpret a norm of legal rank in line with a norm of constitutional rank and/or the direct application of a norm of constitutional rank, this does not mean that the regular courts can ascertain or declare a legal norm as a norm contrary to the Constitution or the ECHR. Such a competence, of ascertaining unconstitutionality and repeal of a legal norm, is not foreseen by the Constitution as a competence of the regular courts. Such a right, the Constitution has assigned exclusively to the Constitutional Court which can, after the submission of a referral by an authorized party under Article 113 of the Constitution, repeal a legal norm that is contrary to the Constitution and determine the effects of such a repeal.

As to the compatibility of the challenged decisions of the Supreme Court with Article 45 of the Constitution in conjunction with Article 3 of Protocol No. 1 of the ECHR, taking into account the general principles regarding the voting abroad established by the ECtHR, the Court noted that although the time for decision-making in electoral disputes is relatively short and that the right to a fair trial under Article 31 of the Constitution and Article 6 of the ECHR do not apply to electoral disputes, this does not mean that decisions related to electoral disputes should not be sufficiently reasoned. According to the ECtHR, the procedure for reviewing electoral disputes must include a “sufficiently reasoned decision” in order to “prevent the abuse of power by the relevant decision-making authority”.

Following the application of these principles, the Court found that the reasoning of the Supreme Court and the conclusions reached on the basis of that reasoning were arbitrary and did not meet any of the criteria of a sufficiently reasoned court decision. This is due to the fact that the Supreme Court did not apply any relevant test of the court review nor did it elaborate on any of the following issues that were relevant and necessary to be clarified in the circumstances of the present case: (i) what is meant by the “principle of universal suffrage” which the Supreme Court referred to, how that principle relates to the right to vote from abroad and how the latter was violated in the circumstances of the present case; (ii) what are the obligations that Article 3 of Protocol no. 1 of the ECHR imposes on states regarding outside voting; and (iii) what exactly makes the deadline set out in Article 96.2 of the LGE in conjunction with Article 4.4. of Election Rule 03/2013 to be a legal norm in collision with Article 3 of Protocol no. 1 of the ECHR.

In this regard, the Court noted and found that the Supreme Court failed to establish, in any way, how the ECAP decision-making was erroneous and why the ECAP line of reasoning should be replaced by a completely different line that was not in compliance with the LGE and the election practice so far. Consequently, the Court concluded that the Supreme Court did not provide sufficient legal and constitutional reasoning and that its decision-making in the circumstances of the present case was arbitrary and, therefore, contrary to the guarantees of Article 45 of the Constitution in conjunction with Article 3 of the Protocol no. 1 of the ECHR. Furthermore, as regards the compliance of the legal norm which required that outside voting must arrive at the CEC twenty-four (24) hours before election day, in order for them to be counted, the Court concluded that this restriction on the right to vote: (1) was a restriction provided by law; (2) there was a legitimate purpose aimed to be achieved by that restriction; and (3) there is a relationship of proportionality between the restriction of the right in question and the legitimate purpose aimed to be achieved. The Court also found that the time limit set out in Article 96.2 of the LGE in conjunction with Article 4.4 of Election Rule no. 03/2013, was not arbitrary and did not affect the impossibility of free expression of the will of the people regarding their representatives in the Assembly and as such was in compliance with Article 45 of the Constitution and Article 3 of Protocol No. 1 of the ECHR.

In conclusion, the Court unanimously found that: (i) the Referral is admissible for review on merits; (ii) the challenged decisions of the Supreme Court are not in compliance with Article 3 of Protocol No. 1 of the ECHR in conjunction with Article 45 of the Constitution, and as such the Court declares them invalid; (iii) ECAP decisions are in compliance with Article 3 of Protocol no. 1 of the ECHR in conjunction with Article 45 of the Constitution; (iv) the legal deadline set by the Assembly for arrival of the votes from abroad through Article 96.2 of the LGE in conjunction with Article 4.4. of Election Rule no. 03/2013 was a restriction of the right to vote which was in compliance with Article 55 of the Constitution because the latter: was provided by law; had a legitimate purpose to be achieved by that restriction; and there was a relationship of proportionality between the restriction of that right and the legitimate aim which was intended to be achieved by that restriction; and that, in the circumstances of the present case (v) the restriction of the right to vote (as a relative right and not an absolute right) by term has not been arbitrary and has not affected the impossibility of free expression of the will of the people with respect to their representatives in the Assembly.

With regard to the effects of this Judgment, the Court clarified that although its finding that the challenged decisions of the Supreme Court are not in compliance with Article 3 of Protocol no. 1 of the ECHR in conjunction with Article 45 of the Constitution has no retroactive effect on the announced election result in the circumstances of the present case, according to the reasons given; however, the Judgment in this case produces at least four important effects, as follows: (1) the clarification of the rights and obligations of the regular courts in cases where they are confronted with norms of legal rank which claim to be in collision with norms of constitutional rank; (2) the repeal of the two challenged decisions of the Supreme Court and the upholding of the two decisions of the ECAP so that, while the Assembly of the Republic of Kosovo upholds Article 96.2 of the LGE, all votes that reach the CEC after the legal deadline must be declared invalid votes and must not be counted or included in the final election result; (3) clarification that in the circumstances of the present case there was no collision between the norm of the legal rank and that of the constitutional rank and that, in this respect, the Supreme Court declared the collision in question in an arbitrary manner, exceeding its constitutional powers and without sufficient and adequate reasoning; and that (4) the finding of a violation enables the Applicant to consider the use of other legal remedies available for the further exercise of its rights in accordance with the findings of this Judgment.