Constitutional Court

KO55/23, Applicant President of the Assembly of the Republic of Kosovo, Assessment of the draft constitutional amendments, referred by the President of the Assembly of the Republic of Kosovo on 2 March 2023, by letter no. 08/3509/Do/1493/1

KO55/23, Judgment of 22 December 2023, published on 25 January 2024

The Constitutional Court of the Republic of Kosovo has decided in case KO 55/23, regarding the referral for the constitutional review of the constitutional amendments proposed by forty (40) deputies of the Assembly of the Republic of Kosovo, referred by the President of the Assembly of the Republic of Kosovo on 2 March 2023, through his Letter No. 08/3509/Do/1493/1. The referral was submitted to the Court pursuant to paragraph 9 of article 113 [Jurisdiction and Authorized Parties] and paragraph 3 of article 144 [Amendments] of the Constitution, according to which the President of the Assembly of the Republic of Kosovo, refers the proposed constitutional amendments to the Constitutional Court prior to their adoption in the Assembly, in order to ascertain whether the proposed amendments diminish the rights and freedoms set forth in Chapter II [Fundamental Rights and Freedoms] of the Constitution.

The Court, unanimously, has decided to declare the referral admissible, and found: (i) by six (6) votes for and two (2) votes against, that the proposed constitutional amendment no.29, proposing the transitory/provisional control of the integrity of “the members of the Kosovo Judicial Council, the members of the Kosovo Prosecutorial Council, the presidents of all courts and all chief prosecutors, as well as the candidates for these positions[…]”, by the Integrity Control Authority (Authority), does not diminish the fundamental rights and freedoms guaranteed by Chapter II of the Constitution; (ii) unanimously, that the proposed constitutional amendments no.27 and no.28, proposing the supplementation of the constitutional criterion for the dismissal of judges and prosecutors due to “serious neglect of duties”, as stipulated by paragraph 4 of article 104 [Appointment and Removal of Judges] and paragraph 6 of article 109 [State Prosecutor] of the Constitution, with the wording “has been continuously evaluated with insufficient performance” or “has committed serious disciplinary violations”, as permanent grounds for the dismissal of judges and prosecutors, do not diminish the fundamental rights and freedoms guaranteed by Chapter II of the Constitution; (iii) unanimously, that the proposed constitutional amendments no.27 and no.28, proposing the supplementation of the constitutional criterion for the dismissal of judges and prosecutors due to “serious neglect of duties”, as stipulated by paragraph 4 of article 104 [Appointment and Removal of Judges] and paragraph 6 of article 109 [State Prosecutor] of the Constitution, with the wording “has been proven to have unjustifiable assets”, established by a final judicial decision, do not diminish the fundamental rights and freedoms guaranteed by Chapter II of the Constitution; whereas (iv) unanimously, that the proposed constitutional amendments no.27 and no.28, proposing the supplementation of the constitutional criterion for the dismissal of judges and prosecutors due to “serious neglect of duties”, as stipulated by paragraph 4 of article 104 [Appointment and Removal of Judges] and paragraph 6 of article 109 [State Prosecutor] of the Constitution, with the wording “has vulnerable integrity”, does diminish the fundamental rights and freedoms guaranteed by Chapter II of the Constitution.

The Judgment initially clarifies that the proposed constitutional amendments referred to the Court by the President of the Assembly of the Republic of Kosovo and approved by the ad hoc Committee on Vetting in the Justice System, established by the Assembly of the Republic of Kosovo, are related to (i) the transitory/provisional process of the integrity control of the members of the Kosovo Judicial Council, Kosovo Prosecutorial Council, the presidents of all courts, the Chief State Prosecutor and all chief prosecutors as well as the candidates for these positions, namely, the vetting process in the justice system; and (ii) expansion/supplementation of the permanent constitutional grounds for the dismissal of judges and prosecutors in the Republic of Kosovo. The Judgment also clarifies that the process of preparing the respective constitutional amendments began with (i) the approval of the “Concept-document for the development of the Vetting process in the justice system” by the Government on 13 October 2021; and (ii) the submission of the Concept-document and the proposed constitutional amendments by the Ministry of Justice for an opinion to the Venice Commission on 10 February 2022 and on 18 May 2022. On 17-18 June 2022, the Venice Commission at its 131st plenary meeting adopted Opinion [No. CDL-AD(2022) 011] for the Concept-document on the Vetting of Judges and Prosecutors and draft constitutional amendments, which was published on 20 June 2022. This Opinion, among others, emphasizes that (i) the integrity control, namely the vetting in the justice system, can be done only through constitutional amendments; (ii) in order to ensure a proportional reform, the transitory/provisional process of the integrity control should be limited only to the members of the Kosovo Judicial Council, Kosovo Prosecutorial Council, the presidents of the courts and the chief prosecutors; (iii) other issues related to the integrity of the judicial and prosecutorial system, namely of judges and prosecutors in the Republic of Kosovo, should remain within the competence of the respective Councils and should be conducted through legislative changes and the strengthening of the existing mechanisms in the applicable laws of the Republic of Kosovo; (iv) any interference in the constitutional rights should be strictly proportional and that any constitutional amendment should aim at minimal invasiveness in the competences of the Kosovo Judicial Council and the Kosovo Prosecutorial Council; and (v) the relevant constitutional and legislative amendments should be prepared on the basis of a sincere dialogue and close cooperation with all relevant stakeholders, including the Ministry of Justice, the Judicial Council and the Prosecutorial Council, as well as civil society and interested members of the academia.

In terms of the scope of the constitutional review of the proposed constitutional amendments, the Judgment further clarifies that the constitutional review of the proposed amendments, pursuant to paragraph 3 of article 144 [Amendments] of the Constitution, is limited to assessing whether the proposed constitutional amendments diminish any of the rights and freedoms stipulated in Chapter II of the Constitution. As per the clarifications given in the Judgment, such an assessment is also subject to the compatibility of the proposed amendments with the values of the constitutional order of the Republic of Kosovo, as specified in article 7 [Values] of the Constitution and the obligations stemming from article 53 [Interpretation of Human Rights Provisions] of the Constitution, which stipulates that human rights should be interpreted in harmony with the case-law of the European Court of Human Rights.

In conducting the assessment of the proposed constitutional amendments, the Court, among others, took into consideration the documentation submitted to the Court by the President of the Assembly and the comments and responses to comments, submitted by: (i) the Office of the President of the Republic of Kosovo; (ii) the Ministry of Justice; (iii) the Kosovo Judicial Council; (iv) the Kosovo Prosecutorial Council; as well as (v) one deputy of the Assembly of the Republic of Kosovo. Furthermore, and in assessing whether the proposed constitutional amendments diminish the fundamental rights and freedoms stipulated in Chapter II of the Constitution, the Judgment initially elaborates (i) the basic principles of the Constitution pertaining to the separation and balancing of powers and the independence of the judicial power and prosecutorial system in the legal order of the Republic of Kosovo; (ii) the principles and standards pertaining to the independence of the judiciary and the prosecution, stemming from international instruments and documents, including those of the United Nations, the European Union, the Council of Europe, including the recommendations of the Committee of Ministers and the Opinions of the Consultative Council of European Judges and the Consultative Council of European Prosecutors, the relevant Opinions of the Venice Commission, the case-law of the European Court of Human Rights and the Court of Justice of the European Union; (iii) the general principles, stemming from the Constitution and international standards and instruments with respect to the criteria for the dismissal of judges and prosecutors; (iv) Opinions and Amicus Curiae briefs of the Venice Commission, with respect to the transitory evaluation (vetting) of judges and prosecutors, including the case of the Republic of Albania, Moldova and Ukraine; (v) the comparative analysis of the Constitutions of the member states of the Council of Europe; and (vi) Opinion No. CDL-AD (2022)011 of the Venice Commission on Kosovo, with respect to the Concept Document for the Vetting of Judges and Prosecutors.

The judgment further clarifies that the proposed constitutional amendments are of two categories. The first category, namely the proposed constitutional amendment no.29, is transitory/provisional in nature and includes the proposal related to the vetting process in the justice system, namely the establishment of the Authority, as an interim body, established outside the judicial and prosecutorial system that is vested with the competence of the integrity control of the members of the Kosovo Judicial Council, the Kosovo Prosecutorial Council, the presidents of the courts, the Chief State Prosecutor, the chief prosecutors of the prosecution offices and candidates for these positions. Whereas, the second category, namely the proposed amendments no.27 and no.28, are of a permanent nature and propose the expansion/supplementation of the existing constitutional grounds for the dismissal of judges and prosecutors due to “serious neglect of duties”, as stipulated by paragraph 4 of article 104 [Appointment and Removal of Judges] and paragraph 6 of article 109 [State Prosecutor] of the Constitution. In the application of the constitutional principles and relevant international standards, including those stemming from the Opinion of the Venice Commission on Kosovo, the Court found that (i) the proposed amendment no.29, which is related to the transitory/provisional vetting process in the justice system, does not diminish the fundamental rights and freedoms guaranteed in Chapter II of the Constitution; while (ii) the proposed amendments no.27 and no.28, which are related to the supplementation of the permanent constitutional grounds for the dismissal of judges and prosecutors, do not diminish the fundamental rights and freedoms guaranteed by Chapter II of the Constitution in the context of three (3) of the proposed phrasings, whereas they diminish such rights and freedoms, in the context of the one (1) proposed phrasing, according to the following clarifications:

• transitory/provisional process of controlling the justice system – vetting

The judgment initially clarifies that the proposed constitutional amendment no.29, stipulates (i) the establishment of the integrity control mechanism for the leading positions in the justice system, through the Integrity Control Authority; (ii) the interim term of office of the Authority for a period of two (2) years, with the possibility of extension for one (1) additional year, if decided so by a law adopted by two-thirds (2/3) of all deputies of the Assembly and establishes that the integrity control, including the control of the assets and the figure of the control subject, shall be undertaken only once; (iii) the composition, selection, organization, functioning, competences and immunity of the Authority, as further determined by law; (iv) the composition and competences of the integrity control panels and the respective Appeals Panel, including as further determined by law; (v) the competence of the President of the Republic to organize the election process of the members of the Authority and who are voted en bloc and elected with the votes of two thirds (2/3) of all deputies of the Assembly and who are dismissed with the same majority on the proposal of the Appeals Panel of the Authority; (vi) the competence of the Authority to confirm the passing of the integrity control by the relevant subject or to propose to the President the dismissal of the same; (vii) the obligation for cooperation by the control subject; and (vii) the right of appeal to the Authority’s Appeals Panel and at the Constitutional Court.

In the assessment of this constitutional amendment, the Judgment initially emphasizes that the establishment of the Authority, which is vested with the competence to control the integrity of “the members of the Kosovo Judicial Council, the members of the Kosovo Prosecutorial Council, the presidents of all courts and all chief prosecutors, as well as the candidates for these positions”, can only be conducted through constitutional amendments, taking into account that the competences of the aforementioned Authority affect (i) the constitutional competences, including the full constitutional independence of the Kosovo Judicial Council and the Kosovo Prosecutorial Council, pursuant to the provisions of articles 108 [Kosovo Judicial Council of Kosovo] and 110 [Kosovo Prosecutorial Council of Kosovo] of the Constitution; (ii) the constitutional competences of the President of the Republic defined by paragraphs 15 and 17 of article 84 [Competences of the President] of the Constitution; and (iii) the constitutional competence of the Assembly as stipulated by paragraph 10 of Article 65 [Competences of the Assembly] of the Constitution.

In what follows, the Judgment clarifies that beyond the interim effect on the constitutional competences of the aforementioned institutions, the establishment of the Authority also affects (i) the rights of the integrity control subjects, namely the members of the Kosovo Judicial Council, the Kosovo Prosecutorial Council, the presidents of all courts and all chief prosecutors as well as the candidates for these positions; but also (ii) the fundamental rights and freedoms of all citizens, because such a process that includes the integrity control of the leading positions and which are responsible for the overall operation and administration of the justice system, may affect the administration of individual cases before the courts and prosecution offices and subsequently, their constitutional right to a fair and impartial trial. Considering the effect of the establishment of the Authority in the constitutional order of the Republic of Kosovo, the Judgment elaborates and evaluates all of the proposed constitutional amendments separately, with an emphasis on the analysis on (i) whether the Authority, namely the control panels and the Appeals Panel, meet the criteria of an independent “tribunal/court” established by law according to the guarantees contained in article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with article 6 (Right to a fair trial) of the European Convention on Human Rights; (ii) whether the subjects that undergo the integrity check by the Authority are guaranteed the right to access to justice, legal remedy and judicial protection of rights in compliance with the provisions of articles 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution in conjunction with article 6 (Right to a fair trial) and article 13 (Right to an effective remedy) of the European Convention on Human Rights; and (iii) whether the integrity control through the mechanisms of the Authority, infringes the right to privacy of the relevant subjects in violation of the guarantees of article 36 [Right to Privacy] of the Constitution in conjunction with article 8 (Right to respect for private and family life) of the European Convention on Human Rights.

In the context of the first question, and with reference to the relevant case-law of the European Court of Human Rights, the Court assessed the criteria related to (i) the judicial function of the control panels and the Appeals Panel of the Authority; (ii) the manner of election and dismissal of the members of the Authority; and (iii) the concept of independence and impartiality of the control panels and the Appeals Panel and the term of office for the members of the Authority, and found that, in principle, the control panels and the Appeals Panel of the Authority, have the status of the “court/tribunal” as required by article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with article 6 (Right to a fair trial) of the European Convention on Human Rights. In the context of the second question, namely the right of access to court of the control subjects and effective legal remedies, the Judgment, among others, clarifies that although the proposed constitutional amendments exclude the right to legal remedies against the decisions of the Authority before the regular courts, they guarantee the principle of duality, namely the right to appeal the decisions of the control panels at the Appeals Panel of the Authority as well as the right to submit a referral for constitutional review of the aforementioned decision of the Appeals Panel before the Constitutional Court pursuant to the provisions of paragraph 7 of article 113 [Jurisdiction and Authorized Parties] of the Constitution. In the context of the third question, namely, the right to privacy, the Judgment, elaborates the principles that derive from article 36 [Right to Privacy] of the Constitution in conjunction with article 8 (Right to respect for private and family life) of the European Convention on Human Rights, and clarifies that the question of data but also the question of dismissal of the control subjects, falls within the scope of the right to private and family life, and that any “interference/restriction” of such rights must be “prescribed by law”, “pursue a legitimate aim” and be “proportional” and necessary in a democratic society. In principle, the Judgment clarifies that the purpose of the transitory/provisional control of the control subjects follows a legitimate aim, namely that of the proper administration of justice and that the established mechanisms are, in principle, proportional to the pursued aim.

Having said that, the Judgment, among others, also denotes that (i) the voting of the members of the Authority en bloc with two-thirds (2/3) of the votes of all deputies, includes the Assembly’s obligation to evaluate and ensure that every candidate for becoming a member of the Authority individually meets the highest professional and integrity criteria; (ii) the composition of the Authority and the new appointments in the positions that are subject to control, must be in compliance with the constitutional requirements for gender equality and the representation of members of the non-majority communities; and (iii) based on the case-law of the European Court of Human Rights, any “interference/limiting of” the right to private life through the integrity control procedures conducted by the Authority, must be strictly proportional to the pursued aim. Moreover, the Judgment also states that based on the proposed constitutional amendments, the term of office for the Authority is two (2) years from the election of all of its members, with the possibility of extension for a maximum of one (1) additional year, if decided so by law adopted by two-thirds (2/3) of the votes of all deputies of the Assembly. The Judgment clarifies that the failure to adopt this law results into the immediate termination of the Authority’s mandate. Finally, the Judgment also emphasizes that the Court’s assessment that the proposed constitutional amendment no.29, does not result in diminishing the fundamental rights and freedoms stipulated in Chapter II of the Constitution, is without prejudice to the constitutional review of the law of the Assembly adopted for the implementation of the aforementioned amendment, insofar as it is contested before the Court through authorized parties as provided by the Constitution.

(ii) supplementing the permanent constitutional grounds for the dismissal of judges and prosecutors

The judgment initially clarifies that pursuant to paragraph 4 of article 104 [Appointment and Removal of Judges] and paragraph 6 of article 109 [State Prosecutor] of the Constitution, judges and prosecutors may be removed from office upon (i) “conviction of a serious criminal offense”; or for (ii) “serious neglect of duties” whereas, pursuant to paragraph 2 of article 107 [Immunity] of the Constitution, they shall not enjoy immunity and may be removed from office if they have committed an intentional violation of the law. Furthermore, as per the elaborations in the Judgment, Law No. 06/L-57 on Disciplinary Liability of Judges and Prosecutors and the acts of the Kosovo Judicial Council and the Kosovo Prosecutorial Council, further stipulates the types of disciplinary violations of judges and prosecutors, including those related to “violations of the law” or “violation of official duties”, the corresponding sanctions and the proposal for dismissal of the relevant judge or prosecutor. The proposed constitutional amendments no.27 and no.28, propose expanding/supplementing the constitutional grounds of “serious neglect of duties”, including at the level of the constitutional norm by also adding the basis of (i) “continuously insufficient performance”; (ii) “unjustifiable assets”; (iii) “serious disciplinary violations”; and (iv) “vulnerable integrity”.

In assessing whether the proposed amendments, diminish the fundamental rights and freedoms guaranteed by Chapter II of the Constitution, the Judgment, among others, clarifies that (i) unlike the transitory control of the integrity for judges and prosecutors as an interim and extraordinary measure, an essential element of the independence of the judicial branch and prosecutorial system, is the principle of security of tenure and irremovability from office; and (ii) the permanent grounds for the dismissal of judges and prosecutors should enable taking effective measures against those who infringe the integrity of the justice system, but at the same time, provide guarantees that the same exercise the relevant functions in an independent and impartial manner and without interference. Consequently, the relevant international instruments, including the Opinions of the Venice Commission and the Opinions of the Consultative Council of European Judges, stipulate the obligation that the grounds for disciplining and/or dismissing judges and prosecutors, must be clearly defined, including as pertains to the procedural guarantees to be followed. Such a principle also stems from the principle of legal certainty as an essential part of the rule of law, according to which, the norm should be in accordance with the criteria of “clarity” and “foreseeability”.

In the aforementioned context, the Judgment emphasizes that the Constitution of the Republic of Kosovo and the applicable relevant laws establish sufficient grounds for the dismissal of judges and prosecutors. Moreover, issues related to performance evaluation and serious disciplinary violations, based on the Constitution and the Law on Disciplinary Liability of Judges and Prosecutors, already provide grounds for proposing the dismissal of judges and prosecutors. In their Opinion on Kosovo, the Venice Commission also recommended that beyond the transitory/provisional control of integrity focused on the senior positions of the judicial and prosecutorial system, issues related to the integrity of other judges and prosecutors of the Republic of Kosovo, are to be administered by the respective Councils, through strengthening the existing legal mechanisms, including through the adoption/amendment of the relevant laws. However, as per the elaborations given in the Judgment, the Court considers that if the proposer of the constitutional amendments considers that such criteria that are related to “professional performance”, “serious disciplinary violations” and “unjustifiable assets” of judges and prosecutors as confirmed by a final judicial decision, should also be prescribed at the level of the constitutional norm, such a determination is possible, because the aforementioned formulations/grounds are sufficiently “clear” and “foreseeable”, and as such, do not result in diminishing the fundamental rights and freedoms guaranteed in Chapter II of the Constitution.

In the context of the phrasing “it has been confirmed to have unjustifiable assets”, the Judgment, among others, clarifies that (i) the assets’ declaration mechanism is one of the mechanisms for fighting corruption in the public sector, including judges and prosecutors, and as such, the same may result in the dismissal of judges and prosecutors; (ii) the assets’ declaration mechanism prescribed through Law No. 08/l-108 on Declaration, Origin and Control of Assets and Gifts, is also referred to by the Venice Commission in its Opinion on Kosovo, and references to similar mechanism as also reflected in other relevant opinions, including those of the Consultative Council of European Judges and Prosecutors and the case-law of the European Court of Human Rights; and (iii) the Criminal Code of the Republic of Kosovo, stipulates the criminal offense of “failure to report or falsely reporting property, revenue/income, gifts, other material benefits or financial obligations”, and the punishment for this offence, based on the Constitution, results in the proposal for the dismissal of the respective judge and/or prosecutor. The Judgment, however, clarifies that none of the Constitutions of the member states of the European Union nor of the Council of Europe stipulate “unjustifiable assets” at the level of the constitutional norm, as a ground for the dismissal of judges and/or prosecutors.

Having said that, according to the clarifications provided in the Judgement, (i) while it is undisputable that failure to report or falsely reporting assets, currently provides grounds for the dismissal of a judge and/or prosecutor; and (ii) that the concept of “unjustifiable assets” differs from the abovementioned criminal offence, the Judgment clarifies that, “unjustifiable assets”, confirmed through a final court decision, may constitute a ground for the dismissal of the judge and/or prosecutor, subject to the guarantees related to (i) access to justice, as guaranteed by articles 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution; and (ii) the right to a fair trial, as guaranteed by article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction as well as Article 6 (Right to a fair trial) of the European Convention on Human Rights.

As per clarifications given in the Judgment, the Court also reviewed the proposed ground for the dismissal of judges and/or prosecutors that is related to the phrasing “vulnerable integrity”. The Judgement clarifies that issues related to the integrity of judges and prosecutors, are covered in a comprehensive manner by existing constitutional and legal bases that may result in their dismissal. However, in applying the standards derived from constitutional principles and international instruments, the phrasing “has vulnerable integrity”, as a permanent basis for the dismissal of a judge and/or prosecutor, is characterized by a lack of a “precise” and “foreseeable” definition. Moreover, in balancing (i) the principle of security of tenure of the judge and/or prosecutor and the importance of this principle for the independence of the judicial and prosecutorial systems, including the concept pertaining to an independent court established by law as required by article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with article 6 (Right to a fair trial) of the European Convention on Human Rights; and (ii) the “unclarity” and “unforeseeability” of the proposed wording, including in the context of the lack of necessary procedural guarantees pertaining to the assessment of “vulnerable integrity” as a permanent grounds for the dismissal of judges and prosecutors, proposed at the level of the constitutional norm, the Court found that such a proposal, results in diminishing the fundamental rights and freedoms guaranteed by Chapter II of the Constitution.

The Judgment ultimately emphasizes that it is undisputable that the independence of the judicial branch and the prosecutorial system are essential components of the constitutional order of the Republic of Kosovo, which is based on the values of rule of law and democracy. The Constitution of the Republic of Kosovo defines the Kosovo Judicial Council and the Kosovo Prosecutorial Council as two independent constitutional institutions, granting them the competence to administer with the judicial and prosecutorial systems, respectively, including issues related to the disciplinary procedures for judges and prosecutors and the competence to propose their dismissal. These competences of the Councils also entail their obligation to act with due efficiency in the implementation of the applicable laws, including the Law on Disciplinary Liability of Judges and Prosecutors, and to take the necessary measures against any judge and prosecutor who may violate the integrity of the judicial and prosecutorial system in the Republic of Kosovo. The Judgment emphasizes that the proper functioning and administration of justice, including the public trust in this system, reflects one of the most essential principles of a democratic society based on the rule of law, a principle which is of a fundamental value for the constitutional order of the Republic of Kosovo.

The Judgement will be supplemented by a dissenting opinion and a concurring opinion.