Constitutional Court

KO127/21, Applicant, Abelard Tahiri and 10 other deputies of the Assembly of the Republic of Kosovo, Constitutional review of Decision No. 08-V-029 of the Assembly of the Republic of Kosovo, of 30 June 2021, for the dismissal of five (5) members of the Independent Oversight Board for the Civil Service of Kosovo

KO127/21, Judgment, of 9 December 2021, published on 22 December 2021

Keywords: Institutional Referral, Independent Oversight Board for Civil Service, institutional independence, independence of members, oversight of the Assembly, dismissal, decision-making, immunity;

In the circumstances of this case, the Court has assessed the constitutionality of the Decision [no. 08-V-029] of 30 June 2021, of the Assembly of the Republic of Kosovo, by which five (5) members of the Independent Oversight Board for the Civil Service of Kosovo have been dismissed. The Referral for constitutional review of this act has been submitted to the Court by eleven (11) deputies of the Assembly, based on the authorizations defined by paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution. In assessing the constitutionality of the challenged Decision of the Assembly, the Court unanimously decided that (i) the Referral is admissible; (ii) Decision [no. 08/V-029] of 30 June 2021 of the Assembly is not in accordance with paragraph 2 of Article 101 [Civil Service] of the Constitution; (iii) to repeal the abovementioned Decision; (iv) to repeal the Interim Measure determined by the Court Decision of 21 October 2021; and (v) to reject the request for a hearing.

The Court recalls that on 30 June 2021, based on the recommendation of the Assembly’s Committee on Public Administration, the Assembly voted for the dismissal of five (5) members of the Independent Oversight Board. Challenging the constitutionality of this act, the Applicants alleged before the Court that the challenged Decision of the Assembly infringes the independence of the Board guaranteed by Article 101 [Civil Service] and Article 142 [Independent Agencies] of the Constitution, emphasizing that the Board, as an independent constitutional body, cannot be subject to interference by the Assembly and that for the collective dismissal of members of the Independent Oversight Board, none of the legal criteria set out by the Law on the Independent Oversight Board for the Civil Service of Kosovo have been met. The counter-arguments submitted to the Court by the respective deputy of the Parliamentary Group of Lëvizja Vetëvendosje!, in essence, emphasize that the Assembly in issuing the challenged Decision has acted in accordance with its oversight function, whilst the case raised before the Court does not involve constitutional matters, because the Constitution does not determine the procedure for the election and dismissal of members of the Independent Oversight Board.

In assessing the relevant arguments and counter-arguments and the circumstances of the case, the Court (i) initially elaborated on the status of the Independent Oversight Board for the Civil Service and its members, with reference to the Constitution, applicable laws and in the case law of the Court; (ii) elaborated on the competence of the Assembly and the relevant restrictions on the exercise of the oversight function of the Independent Oversight Board; and finally (iii) applied these principles in assessing the constitutionality of the challenged Decision of the Assembly.

With regard to the institutional independence of the Independent Oversight Board, the Court, inter alia, noted that (i) the Independent Oversight Board is an institution established by Article 101 of the Constitution; (ii) the Constitution has defined to the Board the status of an “independent” institution in the exercise of its constitutional function, respectively, to “ensure the respect of the rules and principles governing the civil service”; (iii) based on the consolidated case law of the Court, it was determined that the Independent Oversight Board enjoys the prerogatives of a “tribunal” in terms of Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 (Right to a fair trial) of the European Convention on Human Rights and that the decisions of the Independent Oversight Board are “final, binding and enforceable”; and (iv) the control of the legality of the decisions of the Independent Oversight Board is done by the initiation of an administrative dispute in the competent court, consequently, they are subject to the control of the judicial power.

With regard to the independence of the members of the Independent Oversight Board, the Court noted that (i) the independence of the Independent Oversight Board in exercising its constitutional function to “ensure the respect of the rules and principles governing the civil service” also implies the independence of its members in decision-making; and (ii) for the same purpose, the Assembly itself, by the Law on the Independent Oversight Board for the Civil Service, has determined the immunity of members of the Independent Oversight Board from prosecution, civil lawsuit or dismissal “regarding the decision-making within the constitutional and legal functions of the Board”; respectively, for the point of views expressed, the manner of voting or the decisions taken during their work as members of the Independent Oversight Board.

With regard to the competence of the Assembly to oversee the Independent Oversight Board, the Court noted that (i) the competence of the Assembly to oversee the work of the Government and other public institutions, which, in accordance with the Constitution and laws, report to the Assembly is defined in paragraph 9 of Article 65 [Competencies of the Assembly] of the Constitution; and (ii) in the case of the Independent Oversight Board, this competence of the Assembly is further detailed in the Law on the Independent Oversight Board for the Civil Service and includes, inter alia, also the authorization of the Assembly to terminate the mandate of the members of the Board in the circumstances set forth in Article 15 (Termination of the Board’s member mandate) of this Law. However, the Court further noted that, the exercise of the competence to terminate the mandate precludes the termination of the same due to the “decision-making” of the members of the Independent Oversight Board, because such circumstances, (i) would infringe the institutional independence of the Board and its members, as it is defined by paragraph 2 of Article 101 of the Constitution; and (ii) would be contrary to the Assembly’s own determination that Board members enjoy immunity from dismissal for decision-making, as defined by the relevant provisions of the Law on the Independent Oversight Board for the Civil Service.

In assessing the constitutionality of the challenged Decision of the Assembly, the Court recalled that the same is referred to items 1.3 and 1.1 of paragraph 1 of Article 15 of the Law on the Independent Oversight Board for the Civil Service. The first, namely item 1.3 of Article 15 of this Law, defines the possibility of termination of the mandate “in case of exercising duties that are not in accordance with his function”. However, the challenged decision of the Assembly does not contain any fact/reasoning as to how five (5) members of the Independent Oversight Board collectively may have exercised their duties of member of Independent Oversight Board in incompatibility with their function. Whereas, the second, respectively item 1.1 of Article 15 of the Law on the Independent Oversight Board for the Civil Service, determines the possibility of termination of the mandate for “violation of this law’s provisions”. In the context of the latter, the challenged decision of the Assembly states that, “it is assessed that the Board has acted in violation of Article 12 of the Law on the IOBCSK, because it has not implemented the applicable laws during decision-making.” The Court emphasized that the challenged decision of the Assembly does not refer to any fact/reasoning in support of the alleged violation of this provision by five (5) members of the Independent Oversight Board collectively, except for emphasizing the “decision-making” of the members of the Independent Oversight Board. This moreover results from the fact that the challenged Decision was preceded by a series of actions and questions of the relevant Committee of the Assembly addressed to the Independent Oversight Board regarding the decision-making in respective cases.

In this context, the Court reiterated that (i) the Assembly has the constitutional competence to oversee the Independent Oversight Board, including the possibility of terminating the mandate of its members in the cases provided for in the Law on the Independent Board for the Civil Service; but that (ii) members of the Independent Oversight Board may not be dismissed solely due to their “decision-making” because pertinent to the same, they have constitutional and legal independence as well as immunity from dismissal, as defined in the law itself adopted by the Assembly. Moreover, based on the same law, the legality of the decisions of the Independent Oversight Board is subject to the control of the judicial power and not the legislative one.

In this context, the Court noted that the Assembly by dismissing (5) five members of the Independent Oversight Board collectively, and without elaborating on any fact based on law, but only on the grounds that the Independent Oversight Board “has not implemented the applicable laws during decision-making”, respectively due to their decision-making in respective cases, for which the members of the Independent Oversight Board enjoy independence and immunity from dismissal and which decision-making, moreover, is subject to the control of the judicial power and not the legislative one, has exceeded the limits of the competence to oversee the work of public institutions, defined by paragraph 9 of Article 65 of the Constitution, in violation of the guarantees regarding the independence of the Independent Oversight Board in exercising its function defined by paragraph 2 of Article 101 of the Constitution. In this context, the Court noted that in exercising its constitutional competence to oversee the Independent Oversight Board, the Assembly also has the obligation to preserve the independence of the Board, which itself has attributed to it by the adoption of the Constitution and the Law on the Independent Oversight Board for the Civil Service.

Consequently and finally, the Court found that Decision [no. 08/V-029] of the Assembly of the Republic of Kosovo regarding the dismissal of five (5) members of the Independent Oversight Board for the Civil Service of Kosovo, is not in accordance with paragraph 2 of Article 101 [Civil Service] of the Constitution of the Republic of Kosovo.