Constitutional Court

KI45/20 and KI46/20, Applicant: Tinka Kurti and Drita Millaku, Constitutional Review of the Decisions of the Supreme Court of Kosovo, AA.nr. 4/2020, of 19 February 2020 and AA.nr.3 / 2020, of 19 February 2020

Keywords: individual claim, gender discrimination, gender quota, passive suffrage 

The subject matter of the Referral was the assessment of the constitutionality of the Decisions of the Supreme Court of Kosovo [AA.nr. 4/2020], dated 19 February 2020 and [AA.nr.3 / 2020], dated 19 February 2020. The Applicants alleged that the challenged decisions violated their fundamental rights and freedoms guaranteed by Articles : 7 [Values], 24 [Equality before the Law], 45 [Electoral and Participation Rights], 53 [Interpretation of the Provisions on Human Rights] and 55 [Restriction of Fundamental Rights and Freedoms] of the Constitution of the Republic of Kosovo, in conjunction with Article 14 (Prohibition of Discrimination) and Article 3 (Right to Free Elections) of Protocol no. 1 of the European Convention on Human Rights.

The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing the Referral] and 47 [Individual Referral] of Law no. 03 / L-121 on the Constitutional Court, and Rule 32 [Submission of Referrals and Responses] of the Rules of Procedure of the Constitutional Court. 

Conclusions:

The joined cases KI45/20 and KI46/20 are two cases concerning the disputes over the elections of 6 October 2019. The Referrals were submitted by two candidates (Tinka Kurti and Drita Millaku) for deputy coming from the Political Entity of VETËVENDOSJE (SELF-DETERMINATION) Movement! (hereinafter: the LVV) – who alleged that the CEC, ECAP and the Supreme Court had applied the manner of replacement of deputies defined by Article 112.2 a) of the Law on General Elections in an unconstitutional manner.

The Court recalls that some deputies of the Political Entity LVV, who were elected to Government/municipal positions, vacated some positions of deputies which had to be replaced by legitimate candidates in the queue for deputies. Thus, from the deputies who vacated their seats, the following replacements were made: the candidate Enver Haliti with 7,777 votes replaced the deputy Albin Kurti; the candidate Alban Hyseni with 7,767 votes replaced the deputy Glauk Konjufca; the candidate Arta Bajralia with 7,674 votes replaced the deputy Albulena Haxhiu; the candidate Fitim Haziri with 7,542 votes replaced the deputy Arben Vitia; the candidate Eman Rrahmani with 7,044 votes replaced the deputy Haki Abazi. Later, the candidate Taulant Kryeziu with 6968 votes replaced the deputy Shpejtim Bulliqi.

The necessity of replacing the deputies automatically activated the legal provisions defined by article 112.2 a) of the Law on General Elections – an article that specifies the manner of replacing the deputies, with the following text:

“112.2 A member of the Kosovo Assembly the term of which ceases pursuant to article 112.1 shall be replaced as follows: 

1. a) by the next eligible candidate of the same gender who won the greatest number of votes of the reordered candidate list of the Political Entity on whose behalf the member contested the last election; […]”

The Court notes that, according to the interpretation of this article made by the CEC, ECAP, and the Supreme Court, all replacements were made based on the criterion of “gender” and irrespective of the result achieved by the candidates for deputy after the achievement of the legally required quota of 30% of underrepresented gender or minority gender. This manner of replacement provided by law, according to the Supreme Court, could not be avoided by either the CEC, the ECAP or the Supreme Court because there is an assumption that the laws are compatible with the Constitution and that they should be applied as they are “until the Court Constitutional would find that a law or any of its legal provisions is contrary to the Constitution”.

Having disagreed with this interpretation, the Applicants submitted their Referrals to the Constitutional Court, under the key allegation that the CEC, ECAP and the Supreme Court have applied the manner of replacing the deputies provided by Article 112.2 a) of the Law on General Elections, in an unconstitutional manner. In essence, they alleged that despite reaching and exceeding of the quota of 30% by women candidates for deputy from LVV – replacements for deputies were not made based on the election result but based on gender. According to them, this has caused inequality in treatment and violation of their right to be elected.

The Court recalls that, on the basis of the replacement manner by the CEC, ECAP and the Supreme Court, men deputies were replaced by men candidates for deputy and women deputies were replaced by women candidates for deputy – despite the fact that the Applicants received more votes that some of the male candidates who managed to get elected to the Assembly. The first Applicant, Tinka Kurti had collected 7655 votes while the second Applicant, Drita Millaku had collected 7063 votes.

The Court clarified that it is not assessing in abstracto whether Article 112.2.a of the Law on General Elections is or is not incompatible with the Constitution. This is due to the fact that, neither before this Court nor before the preliminary public institutions that have addressed this issue, the Applicants have never claimed that the article in question is unconstitutional. On the contrary, the Applicants have only alleged that this article was applied in unconstitutional manner by the CEC, ECAP and the Supreme Court.

Taking into consideration the above facts and the allegations raised in this case, the Court in this individual constitutional complaint treated the fact: Whether the Article 112.2.a of the Law on General Elections has been implemented by the CEC, the ECAP and the Supreme Court, in accordance with the guarantees, values and principles proclaimed by Articles 24 and 45 of the Constitution in conjunction with Article 14 of the ECHR and Article 3 of Protocol no. 1 of the ECHR?

The Constitutional Court found that the interpretation of this Article by the CEC, the ECAP and the Supreme Court is not an accurate and constitutional interpretation for some of the following reasons – which are extensively elaborated in the Judgment.

First, the Court found that the CEC, the ECAP, and the Supreme Court have interpreted Article 112.2 a) of the Law on General Elections in a rigid and textual manner and separated from all other legal norms set forth by the Law on General Elections and the Law on Gender Equality, as well as the principles, values, and the spirit of the letter of the Constitution. This type of interpretation has abstracted the context, purpose, and reason for setting the quota of 30% as a special measure to help achieve equal representation between the two genders in the Assembly of the Republic.

Secondly, the Court noted that the ratio legis of the Law on General Elections in the context of gender representation in the Assembly consists in providing – in any case – representation of at least 30% of the underrepresented or minority gender (whatever it may be). However, obviously, 30% represents only the minimum limit of gender representation of the minority gender, but not the highest limit of representation of one gender. Consequently, the Court considers that, once a minimum representation of 30% is ensured for the underrepresented gender, all future replacements must be made on the basis of the ranking of candidates for deputy, which is determined by the election result. On this basis, the gender quota is applied only until the purpose for which it has been set is achieved, namely to ensure the mandatory minimum representation of the minority gender in the quota of 30%, although the constitutional ideal and spirit of the Constitution reflected in Article 7 aim to achieve factual equality of 50% to 50% between the two genders.

Thirdly, the Court pointed out that the interpretation of Article 112.2 a) of the Law on General Elections pursuant  to the way of interpretation by the CEC, ECAP and the Supreme Court would make sense only in the situation when non-replacements  gender-for-gender( woman-for-woman or man-for-man) could risk non-compliance with the legal quota of 30% of representation for the underrepresented gender. However, the interpretation of this article in the way as it was done, knowing that in the elections of 6 October 2019, women candidates of the political entity LVV had managed to get meritorious votes beyond the legal quota percentage of 30%, is an erroneous interpretation of this norm and inconsistent with the very purpose of the legal quotas stipulated in Article 27 of the Law on General Elections.

Fourthly, the Court emphasized that the purpose of setting quotas relates to the need to advance gender equality within society until when the factual equality is reached and quotas become unnecessary. Article 112.2 a) of the Law on General Elections exists for a single reason: to introduce the manner of the replacement of deputies – by always preserving the purpose of mandatory legal representation of at least 30% of the minority (underrepresented) gender. If, after meeting the 30% threshold, minority candidates manage to become members of parliament on their own, by achieving better results than members of the majority, they should not be denied the right to be elected deputy of the Assembly.

The Court found that the Applicant Tinka Kurti was discriminated against based on gender in relation to her right to be elected, at the moment when despite the minimum quota of 30% being reached within the political entity LVV through the election result, at the moment when the opportunity for the replacement of deputies emerged, even though she had more votes than the men candidates for deputies Fitim Haziri and Eman Rrahmani, she was not enabled to become a deputy.

Further, the Court also found that the Applicant Drita Millaku was discriminated against based on gender in relation to her right to be elected, at the moment when despite the minimum quota of 30% being reached within the political entity LVV through the election result, at the moment when was created the possibility for future replacements of deputies, namely when deputy Shpejtim Bulliqi resigned, in his stead, based on the determination for replacement within the same gender, on 18 December  2020, the mandate of the deputy was taken by the candidate Taulant Kryeziu with 6968 votes.

Consequently, the Court found that: Decision [AA. no. 4/2020] of the Supreme Court, of 19 February 2020; Decision [AA. no. 3/2020] of the Supreme Court, of 19 February 2020; ECAP Decision, [Anr.35/2020] of 13 February 2020; ECAP Decision, [Anr.36/2020] of 13 February 2020; as well as point 5 of the CEC Decision, [no. 102/A-2020] of 7 February 2020, are in contradiction with Article 24 [Equality before the Law] and 45 [Freedom of Election and Participation] of the Constitution in conjunction with Article 14 (Prohibition of Discrimination) and Article 3 (Right to free elections) of Protocol no. 1 of the ECHR. 

The effect of the Judgment

The Court noted that, for objective reasons and in the interest of legal certainty, this Judgment cannot produce retroactive legal effect in respect to the mandate of the deputies. In this regard, the Court clarified that this Judgment does not have a retroactive effect and based on the principle of legal certainty it does not affect rights acquired by third parties based on the decisions annulled by this Judgment. However, this does not mean that this Judgment is merely declaratory and without any effect.

The first effect of this Judgment is the repealing of the challenged decisions of the Supreme Court, the ECAP and the CEC, as being incompatible with the Constitution and the ECHR in terms of interpretation of Article 112.2 a) of the Law on General Elections. Through the repealing of these decisions, this Judgment clarifies for the future that, based on an accurate and contextual reading of Article 112.2.a of the Law on General Elections, the replacement of candidates for deputies should be done in such a way that: firstly, to ensure a minimum representation of 30% of the underrepresented gender (minority gender), which cannot be put into question at any time; and secondly, in cases where the gender quota of 30% has been met based on the election result (as in the concrete case), then the replacement of candidates for deputy should be done based on the election result, without being limited in terms of replacement based on the same gender, as long as the minimum representation of the underrepresented gender is not endangered.

The second effect that this Judgment produces concerns the right that emerges for the Applicants or other parties that may be affected by this Judgment, from the moment of its entry into force. There emerged the right of these parties have to use other legal remedies available for the further realization of their rights in accordance with the findings of this Judgment and the case law of the ECHR cited in the present Judgment.