Constitutional Court

KO61/21, Applicant, Slavko Simić and 10 other deputies of the Assembly of the Republic of Kosovo, constitutional review of Decision No. 08/V-005 of the Assembly of the Republic of Kosovo of 22 March 2021 on the Election of the Government of the Republic of Kosovo

KO61/21, Judgment rendered on 24 September 2021

Keywords: Institutional referral, appointment of ministers, non-majority community, approval/consultations

In the title  – CONCLUSIONS – of this Judgment, the Court summarized the essence of the case as follows:

In Referral KO61/21, the subject matter of review was the constitutional review of the Decision [no. 08/V-005] of the Assembly of the Republic of Kosovo, of 22 March 2021, on the election of the Government of the Republic of Kosovo. The Applicants before the Court alleged that the Decision on the election of the Government is not in compliance with Article 96 [Ministries and Representation of Communities] of the Constitution, because the Minister of Local Government Administration was not elected after consulting a majority of deputies representing non- majority communities in the Assembly of Kosovo.

The main issue in this case relates to the manner in which the ministers representing the non-majority communities in the Government are appointed. Before the Court, the manner of appointing one (1) Minister who is mandatorily appointed by the Serb community was not challenged; or one (1) Minister who is mandatorily appointed by other non-majority communities, but the appointment of the “third” Minister in the Government by non-majority communities, which is a constitutional obligation in case the Government consists of more than twelve (12) Ministers. In this regard, the Applicants alleged that the appointment of the “third” Minister in the Government requires consultation/approval by a majority of all deputies representing non-majority communities in the Assembly, namely by at least eleven (11) out of twenty (20) deputies representing the non-majority communities.

The Constitutional Court stated that, for the purposes of the constitutionality of the composition of the Government, based on Article 96 of the Constitution, the Government should have at least one (1) Minister from the Serb community and one (1) Minister from other non-majority communities. The manner of election of these Ministers varies depending on whether the candidate nominated for Minister is a deputy of the Assembly or not. In order to appoint a candidate for Minister from among the deputies of the Assembly, consultation with parties, coalitions or groups representing non-majority communities in Kosovo is necessary. Whereas, for the appointment of a candidate for Minister outside the ranks of the deputies of the Assembly, the formal approval of the majority of the deputies of the Assembly, who belong to parties, coalitions, civic initiatives and independent candidates, who have declared that they represent the community in question is necessary. The Constitutional Court also stated that the Constitution stipulates that if the composition of a Government has more than twelve (12) Ministers, the Government must also have a third Minister, “representing a Kosovo non- majority Community”. The Court further emphasized that, with regard to the third Minister, the Constitution provides for the discretion of the candidate for Prime Minister regarding the ranks of the respective communities, from which a third Minister may be elected, without necessarily stipulating that this Minister should be proposed/approved from the deputies representing the Serb community or from the deputies representing other non-majority communities, but requesting that the same procedure be followed, namely consultation/approval of the “community in question”, depending on whether the respective candidate is a deputy of the Assembly or not.

In the circumstances of the present case, the Court noted that the “third” minister from the non-majority communities, namely the Minister of Local Government Administration, was a deputy of the Assembly elected in the elections of 14 February 2021, declaring that he represents one of the other non-majority communities in the Assembly within the meaning of Article 64 [Structure of the Assembly] of the Constitution and who is proposed for this position in consultation with the deputies representing other non-majority communities in the Assembly. Considering that the respective candidate was an elected member of the Assembly, formal approval by the community in question is not a constitutional obligation, while before the Court there was no claim that the deputies representing other non-majority communities were not consulted in the proposal of this candidate for Minister, despite the fact that the Court had enabled them to submit their comments on the Referral submitted by the Applicants.

The Court finally clarified that based on Article 96 of the Constitution, the consultation or the approval of the deputies representing the “community in question” is mandatory, namely the deputies representing the Serb community or representing other non-majority communities, depending on whether the respective candidate is a deputy of the Assembly or not, and not the majority of all deputies representing non-majority communities. In the circumstances of the present case, the candidate nominated for Minister was a member of the Assembly and consequently his formal approval was not a constitutional obligation, while before the Court there was no claim that the obligation to consult the “community in question” had not been exhausted. Therefore, the Court found that the challenged Decision of the Assembly of Kosovo on the election of the Government was not rendered in contradiction with paragraphs 3 and 5 of Article 96 of the Constitution.