Decisions published in January 2024

In January 2024, in the Constitutional Court:

• Ninety one (91) cases were reviewed;
• decisions were rendered for eighty five (85) cases:
• four (4) decisions were published;

In this period, on the Constitutional Court’s webpage are published (i) two (2) Judgments; (ii) one (1) Resolution on Inadmissibility; and (iii) one (1) Decision to reject the Referral.

Judgments
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I.
1. KO79/23
Applicant: The Ombudsperson
Published on: 23 January 2024
Request for constitutional review of Law No. 08/L-196 on Salaries in the Public Sector

The Court assessed the constitutionality of Law No. 06/L-111 on Salaries in the Public Sector, which entered into force on 5 February 2023. The Judgment initially clarifies that the contested Law was adopted after the previous law, namely Law no.06/L-111 on Salaries in the Public Sector, at the request of the Ombudsperson, was declared in violation of the Constitution, by the Judgment of the Court KO219/19. The Judgment further clarifies that the contested Law, with the aim of creating a “uniform system of salaries in the public sector”, repeals (i) Law no. 03/L-147 on Salaries of Civil Servants; (ii) certain provisions of special laws related to independent institutions and agencies; and (iii) any law and other sub-legal acts that are in violation of its provisions. According to the clarifications provided in the Judgment, the latter, through the relevant Annexes, categorizes all functionaries/officials and public servants, who fall within the scope of the contested Law, into positions, groups, classes and coefficients. The effect of such categorization in conjunction with the coefficient value set forth through Law no. 08/L-213 on Amending and Supplementing Law no. 08/L-193 on Budget Appropriations for the Budget of the Republic of Kosovo for the Year 2023, resulted into a substantial increase of the salary level for a part of the public sector and a substantial decrease of the salary level for a part of the remainder. The categories affected by the decrease of the salary levels, benefit from a transitory period of two (2) years after the entry into force of the law. Furthermore, according to the clarifications given in the Judgment, the contested Law also (i) delegates the determination of the coefficient value to another law, namely the Law on Budget Appropriations of the Republic of Kosovo; (ii) specifies that a salary level decrease in the Republic of Kosovo can only be made in two exceptional circumstances, namely in the event of a “macroeconomic shock” or the declaration of a state of emergency; (iii) specifies the rules for determination of the categories of allowances and compensations, including the respective budget ceilings/limits, also specifying that these issues are exclusively regulated by this law and may be further regulated only by other sub-legal acts; and (iv) stipulates the competence of the Ministry of Internal Affairs (MIA), to approve, among others, issues related to the structure, components or levels of coefficients for the public institutions of the Republic of Kosovo. The Judgment also clarifies that, the contested Law has already created its effects on the categories whose salary levels were increased, as well as on the categories whose salaries were decreased and which were not subject to the protection through the transitory period, namely (i) for all functionaries/officials/employees for the first fifteen (15) years of work experience, because the amount of the work experience allowance was reduced by half upon the entry into force of the contested Law; and (ii) the foreign service of the Republic of Kosovo, which was excluded from the right to the transitional allowance. The Ombudsperson, also relying on one hundred and four (104) complaints submitted to its Institution by functionaries/officials/employees, organizations and associations, with allegations of violation of fundamental rights and freedoms as a result of the salary levels decrease in the public sector, in essence, argues before the Court that the contested Law was adopted in violation of (i) the fundamental rights and freedoms, including the right to equality before the law and the right to peaceful enjoyment of property; and (ii) the separation and balance of powers in the Republic of Kosovo, in violation of the constitutional guarantees for the independence of independent institutions. The Ombudsperson, more precisely, argues that the contested Law is in violation of the principles of the rule of law, legal certainty and foreseeability, among others, due to the fact that it delegates the determination of the coefficient value to the Law on Budget Appropriations, which was adopted after the entry into force of the contested Law, resulting into the selective and arbitrary decrease of the salary level for a considerable part of the public sector, in violation of the provisions of the contested Law itself, according to which salaries may decrease only as a consequence of a macroeconomic shock or when a state of emergency is declared in the Republic of Kosovo. Moreover, the Ombudsperson also argues that (i) the disproportionate decrease of the salary levels for judges and prosecutors is a fundamental violation of the Constitution, applicable laws, international standards and the Judgments of the Constitutional Court; (ii) the arbitrary decrease of the salary levels for the foreign service of the Republic of Kosovo, as the only category of the public sector which the contested Law has excluded from the two (2) year transitory period, is in violation of the principles of equality before the law; (iii) all employees who were employed in the public sector following the entry into force of the contested Law, are treated unequally during the transitory period, given that they do not receive “equal pay for equal work” contrary to the guarantees provided for by the contested Law itself; (iv) the right to peaceful enjoyment of property for all functionaries/officials/public servants with up to fifteen (15) years of work experience, has been violated as a result of the deduction of the allowance level for work experience, without pursuing any legitimate aim; (v) the functional, organizational and budgetary independence of the judiciary and of constitutionally independent institutions, has been violated in full contradiction with the constitutional guarantees and the case-law of the Constitutional Court; and (vi) the Judgment of the Constitutional Court KO219/19, through which the principles related to salaries in the public sector were determined and through which, the previous Law on Salaries in the Public Sector, was declared in violation of the Constitution, has not been implemented by the Government and the Assembly. Further, the Ombudsperson requests that only the segments of the contested Law which have resulted in the decrease of salary levels, be subject to the constitutional review, and not those segments that have resulted into an increase of the salary levels, taking into account that the rights of the latter, were not affected/violated through the contested Law. The allegations of the Ombudsperson were challenged by the Government, through the MIA. In the context of the scope of Court’s assessment, the Judgment, in what follows and among others, emphasizes that (i) the Assembly has the full constitutional competence to adopt laws and to select policies contained therein, to the extent that the adopted laws are in compliance with the Constitution and the values and principles proclaimed therein; and (ii) according to its consolidated case-law, in reviewing the constitutionality of the contested acts, the Court focuses only on the interpretation and protection of the constitutional norms, and not on the assessment of the selection of the public policy that has led to the adoption of a certain law. In the aforementioned context and in reviewing the constitutionality of the contested Law, the Judgment, among others, initially elaborates (i) the general principles related to the separation and interaction of powers in the Republic of Kosovo, including the independence of the judiciary, the prosecutorial system and the constitutionally independent institutions; (ii) the general principles stemming from the relevant case-law of the Constitutional Court, with an emphasis on the judgments that through the years have specifically elaborated issues pertaining to the functional, organizational and budgetary independence of the constitutionally independent institutions, including in the context of their internal organization and regulation of specifics related to their personnel; and (iii) the principles that were set forth by the Court Judgment KO219/19 related to the salaries in the public sector, including in the context of the separation and balance of powers and fundamental rights and freedoms. Furthermore, the Judgment also elaborates on the general principles stemming from the relevant international standards, including (i) Opinions of the Venice Commission; (ii) the case-law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), through which the alleged violations of fundamental rights and freedoms as a result of decrease of salaries/benefits in the public sector were reviewed; and (iii) the case-law of other Constitutional Courts in reviewing laws related to salaries in the public sector, including but not limited to the Constitutional/Supreme Courts of Bosnia and Herzegovina, Canada, Latvia, Poland, Portugal, Cyprus, Slovenia and Republic of Albania.

Considering the aforementioned principles which are elaborated in detail in the Judgment and the connection between allegations and challenged provisions, the constitutional review of the aforementioned Law, in principle, results in findings of the Court that are related to two categories of issues, namely (i) the system of salaries and rewards and respective procedures to the extent they affect the functional, organizational and budgetary independence of the constitutionally independent institutions; and (ii) fundamental rights and freedoms in relation to the decrease of the salary levels for functionaries/officials/public servants. The Judgment clarifies that the contested Law, among others, also specifies the rules for determining allowances, compensations, and equivalences, including the creation of new functions, positions or designations/titles in the public institutions. The same, in the context of the employees in (i) the Presidency of the Republic of Kosovo; (ii) the Constitutional Court; (iii) the Justice System; (iv) the Assembly of the Republic of Kosovo; and (v) the constitutionally independent institutions, specifies that “it is applied to the extent that it does not infringe their functional and organizational independence guaranteed by the Constitution”. Nevertheless, despite such formulation, the contested Law also (i) specifies that the rules and requirements for determining the salaries, allowances and compensations for employees in the public sector are exclusively subject to regulation by this law and may be regulated by other by-laws/sub-legal acts, only when explicitly stipulated by this law; while it (ii) repeals any provision of the law or any other sub-legal act, including the relevant provisions of special laws of independent institutions and their sub-legal acts, which regulate the issues of salaries, compensations, allowances, rewards or any other category in the field of salaries, which has not been explicitly authorized pursuant to the provisions of the contested Law. Consequently, and as per the clarifications given in the Judgment, the fulfillment of the functional, organizational and independent budgetary administration competencies of the constitutionally independent institutions, has been conditioned only to the issuance of legal acts under the specific limitations of the contested Law. In the context of the first issue, namely the conditions and budget ceilings for determining the allowances, the Judgment clarifies, in principle, that as per the contested Law, the amount of allowances is determined at the amount of zero point one percent (0.1%) to zero point five percent (0.5%) of the total funds used for the basic salary for the public officials of the relevant budgetary organization in the same fiscal year, while for this purpose, the Government is treated as one (1) single budgetary organization. Beyond the finding that conditioning the independent institutions in fulfilling their constitutional independence only through promulgation of sub-legal acts under the circumstances conditioned specifically through the contested Law, infringes upon their organizational and budgetary independence, the Judgment, among others, emphasizes the three following issues, namely: (i) that the fulfillment of the purpose of the norms that determine the budgetary ceilings for allowances, is related to the entirety of funds for the basic salary available to the respective institution, and in the context of determining that the Government will be treated as one (1) single budgetary institution, and taking into account that the total funds available to it are incomparably higher than those of the constitutionally independent institutions, the Government is placed in a more favorable position compared to the other institutions; (ii) moreover, in less than two (2) months following the entry into force of the contested Law, through Law no. 08/L-213 on Amending and Supplementing Law no. 08/L-193 on Budget Appropriations for the Budget of the Republic of Kosovo for Year 2023, the Government was enabled to exceed the budgetary ceilings for the allowances specified through the contested Law, by decision of a Minister, subsequently exempting, at least the Government from the limitations of the contested Law; and (iii) for the deputies of the Assembly and/or the members of the municipal assemblies, by the contested Law has been determined the amount of thirty percent (30%) of the allowances on top of the respective basic salary. Such an approach, through which the independent branches of government and the independent institutions are, essentially, the only ones subject to limitations, namely budgetary ceilings in the context of allowances, is not in compliance with the constitutional guarantees for their institutional independence and principle of balance of interaction between the branches of government. While, in the context of the second issue, namely the determination of the equivalencies, the Judgment clarifies that the contested Law prohibits any change in the structure, components or levels of the salary coefficients and conditions the creation of any new functions, positions or designations/titles, to the approval by the Government, namely the MIA. The Judgment, further clarifies that (i) all institutions of the Republic of Kosovo are subject to their obligation to implement the relevant laws regarding the management of public finances and internal audit procedures, pursuant to the provisions of Law no. 06/L-021 on Public Internal Financial Control, and are subject to the control of the Auditor-General of the Republic of Kosovo, based on the provisions of articles 136 [Auditor-General of Kosovo] and 137 [Competencies of the Auditor-General of Kosovo] of the Constitution; and (ii) recalls that the Court has consistently emphasized that the constitutional independence of the constitutionally independent institutions does not entail the constitutional authorization to act in isolation from other branches of government defined by the Constitution. Yet, the Judgment highlights that, the exercise of these public duties also entails the obligation of each branch of government to ensure the compliance with the independence of the branch of power in which an “interference” might be created, to the detriment of the constitutional balance. In defending this principle, the Court has continuously emphasized that, in exercising the competences to propose and adopt laws, the Government and the Assembly, must ensure that the constitutional independence of the judicial branch and other institutions, which the Constitution has vested with the constitutional guarantees for “functional, organizational and budgetary” independence, is safeguarded. The contested Law does not comply with this principle, in violation of the constitutional independence of independent institutions and the consistent case-law of the Constitutional Court. Consequently, the Court has found that paragraph 2 of article 2 (Scope) and paragraph 2 of article 45 (Repeal) in conjunction with paragraph 2 of article 24 (Allowance for labor market conditions), paragraph 5 of article 25 (Performance allowance), paragraph 4 of article 28 (Workload allowance) and paragraphs 2 and 3 of article 42 (Determining the equivalence) of the contested Law, are not in compliance with paragraph 1 of article 4 [Form of Government and Separation of Power] and paragraph 1 of Article 7 [Values] of the Constitution. In assessing whether the decrease of the salary levels in the public sector has violated the fundamental rights and freedoms, guaranteed by the Constitution, the Judgment after elaborating the case-law of the ECtHR in the context of assessing the violation of rights as a result of decrease of salaries/social benefits during economic crises, the latter clarifies that it is undisputable that the decrease of the salary levels in the public sector has resulted in an “interference/restriction” of the right to peaceful enjoyment of the property and that such “interference/restriction” is “prescribed by law” and pursues “a legitimate aim”, namely that of the “uniformity” of salaries in the public sector.
The Judgment highlights, however, that based on the ECtHR cases reviewed, and which are related to the decrease of the salaries/social benefits, the respective decreases were not a result of such a legitimate aim, but rather a consequence of economic crises and/or measures undertaken to address budgetary deficits. Having said that, the Judgment further focuses on assessing whether the respective “interference/restriction” in the fundamental rights and freedoms is “proportional” to the pursued aim, and whether a “fair balance” has been struck between the general interest and the obligation to protect the fundamental rights and freedoms of the affected subjects, who should not bear an excessive burden in the attainment of this goal/aim. In this assessment, the Judgment focuses on five (5) categories of functionaries/officials/employees who were affected by the contested Law, namely (a) judges and prosecutors; (b) other functionaries/officials/employees who were affected by the salary levels decrease; (c) the foreign service of the Republic of Kosovo; (d) functionaries/officials/employees who were employed following the entry into force of the contested Law; and (e) all employees in the public sector for the first fifteen (15) years of work experience in the context of the reduction by half of the work experience allowance through the contested Law.

(a) judges and prosecutors

The Judgment clarifies that (i) regarding the salary levels of judges and prosecutors, there are guarantees stemming from international instruments and constitutional and legal provisions in the Republic of Kosovo; (ii) the applicable laws of the Republic of Kosovo, namely the Law on Courts and the Law on the State Prosecutor, guarantee preserving the same salary level during the term of office for a judge and/or prosecutor, provisions that are repealed by the contested Law; (iii) judges and prosecutors of the Republic of Kosovo, are the most affected category by the contested Law, namely by up to fifty percent (50%) of the salary value; and (iv) based on the case-law of the ECtHR, the CJEU and the Judgments of other Constitutional Courts, the only circumstances under which the aforementioned courts have not found a violation in the context of decreasing the salary levels of the judicial branch, are the ones related to the economic/financial crises, during which, comprehensive measures have been taken to stabilize the economy, resulting in the temporary salary decrease and the subsequent scaling up of salaries for all public officials, placing an equal burden on judges and prosecutors and other officials. In the circumstances of the contested Law, this is clearly not the case. Consequently, the Court has found that paragraph 2 of article 41 (Transitional allowance) of the contested Law, is not in compliance with paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of Property) of the Protocol no. 1 of the ECHR and paragraph 1 of article 4 [Form of Government and Separation of Power] and paragraph 1 of Article 7 [Values] of the Constitution.

(b) other categories of functionaries, officials and employees who are affected by the salary level decrease

The Judgment clarifies that the contested Law, namely the selective decrease of the salary levels in the public sector, (i) is under no circumstances related to an economic crisis, budgetary deficit or extraordinary circumstances; (ii) is neither temporary nor uniform; (iii) has substantially increased the salary levels for a category of functionaries/officials/employees, while substantially affecting some other categories with an equally high decrease, including the exclusion of entire categories from the rights of the transitory period. As per the clarifications given, the mechanisms chosen by the legislator to achieve the purpose of the contested Law, does not follow the obligations stemming from article 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution, according to which in case of limitations of the fundamental rights and freedoms, public authorities are obliged to assess the relation between the limitation and the purpose to be achieved and to review the possibility of achieving the purpose with a lesser limitation. By placing a disproportionate burden only on certain categories of the public sector, a “fair balance” between the general interest and the obligation to protect fundamental rights and freedoms has not been struck, with the consequence of infringing upon the respective rights to the peaceful enjoyment of property, in a completely disproportionate manner. As a consequence, the Court has found that paragraphs 2 and 3 of article 41 (Transitional allowance) of the contested Law, are not compatible with paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of Property) of Protocol no. 1 of the ECHR.

(c) the foreign service of the Republic of Kosovo

The Judgment, further clarifies that the foreign service of the Republic of Kosovo, along with the category of judges and prosecutors, is proportionally among the most affected by the decrease of the salary levels, but unlike the latter, it has also been excluded from the right to the transitional allowance and consequently, affected with an immediate decrease of the salary levels through the entry into force of the contested Law. Consequently, and as per clarifications given in the Judgment, beyond the disproportionate violation of the right to the peaceful enjoyment of property, the category of the foreign service of the Republic of Kosovo, also raises issues related to equality before the law. In the context of the latter, the Judgment elaborates on the principles stemming from article 24 [Equality Before the Law] of the Constitution in conjunction with article 14 (Prohibition of discrimination) and article 1 (General prohibition of discrimination) of Protocol no. 12 of the ECHR and in the application of the relevant criteria to ascertain whether the “difference in treatment” results in a violation of the aforementioned provisions, the Court has found that pertaining to the category of the foreign service of the Republic of Kosovo, this is the case. Therefore, the Court has found that paragraph 3 of article 41 (Transitional Allowance) of the contested Law is not in compliance with paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with paragraph 1 of article 1 (Protection of Property) of Protocol no. 1 of the ECHR and paragraph 1 of article 24 [Equality Before the Law] of the Constitution in conjunction with Article 14 (Prohibition of discrimination) of the ECHR.

(d) the category of functionaries/officials/employees who are employed after the entry into force of the contested Law

The Judgment also clarifies that according to the contested Law, any person who is employed after its adoption, benefits from the salary according to the relevant Annexes of the Law and does not enjoy the right to the transitory allowance. Consequently, a part of this category is compensated with a lower and different salary for equal work compared to the equivalent positions, for a period of two (2) years, namely for as long as the transitional period lasts. The Judgment further clarifies that this category, which was employed after the entry into force of the contested Law, is not subject to guarantees related to the right to peaceful enjoyment of property in the context of guaranteed provided by article 46 [Protection of Property] in conjunction with article 1 (Protection of property) of Protocol no. 1 of the ECHR. Having said that, the same raises issues pertaining to the principle of equality before the law as guaranteed by article 24 [Equality before the Law] of the Constitution, because a part of the functionaries/officials/employees falling within the scope of this law, but who were employed after its entry into force, will not have the same and/or equal salary as their colleagues who were employed before the entry into force of the contested Law, in violation of the very guarantees that the contested Law itself contains. According to the elaborations given in the Judgment, and in the application of the relevant criteria deriving from the right to equality before the law, the Court found that the “difference in treatment” between these two categories, is not proportional with the aim pursued and, consequently, results in violation of the rights to equality before the law of this category of functionaries/officials and employees. As a result, the Court found that paragraph 4 of article 41 (Transitional Allowance) of the contested Law is not in compliance with paragraph 1 of article 24 [Equality Before the Law] of the Constitution in conjunction with article 1 (General prohibition of discrimination) of Protocol no. 12 of the ECHR.

The Judgment also clarifies that the contested Law reduces by half the work experience allowance, namely from zero point five percent (0.5%) to zero point twenty five percent (0.25%), for each full year of work during the first fifteen (15) years of work experience, thus affecting the salary level of all functionaries/officials/employees falling within the scope of the contested Law. According to the elaborations in the Judgment, it is not contentious that the right to the allowance to the basic salary of zero point five percent (0.5%) for each year of work experience, originates from article 18 (Allowances on salary for work experience) of the previously applicable law, namely, Law no. 03/L-147 on Salaries of Civil Servants. Consequently, the “interference” with this right through the contested Law, is subject to the control of the guarantees provided for through article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of property) of Protocol no. 1 to the ECHR. The Judgment, in applying the principle deriving from the case-law of the ECtHR, clarifies that, while it is not contentious that the relevant “interference” with the right to peaceful enjoyment of property is “prescribed” through the contested Law, the latter does not follow any “legitimate aim”. This, among other things, because, the reduction by half of the level of the allowance for the first fifteen (15) years of work experience, (i) was done neither for the purposes of an economic crisis or of an extraordinary situation; and (ii) nor for the purposes of “a uniform system of salaries in the public sector” which reflects the purpose of the contested Law, but (iii) according to MIA, it was done “to support and stimulate the contribution as a service to the state and society”. The Court has found that paragraph 6 of article 6 (Basic Salary) of the contested Law is not in compliance with paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of Property) of Protocol no. 1 to the ECHR.

Finally, the Judgment clarifies the four (4) main categories of its effects, as follows:

Firstly, the findings of the Judgment, do not in any way, affect the category of functionaries/officials/employees whose salary levels have been increased through the contested Law.

Secondly, declaring as contrary to the Constitution, and consequently repealing paragraphs 2 and 3 of article 41 (Transitional allowance) of the contested Law, has the consequence of maintaining the existing levels of salaries in the public sector until the new salary, namely the salary as determined through the contested Law, reaches the equivalent to the existing salary. Such determination derives from paragraph 1 article 41 (Transitional allowance) of the contested Law, according to which, if a public official or public functionary, before the entry into force of this law, received a salary that is higher than the full salary provided for by this law, she/he will benefit from the new salary according to the provisions of this law and the transitional allowance equal to the difference between the current salary and the new basic salary. The increase in the value of the coefficient for each fiscal year in relation to the proportional reduction of the transitional allowance, while maintaining the level of the existing salary for the categories that have been affected by a salary reduction, gradually results into the full “harmonization/leveling” with the level of the new salary, which is specified by the contested Law through the relevant Annexes. Moreover, declaring as contrary to the Constitution and repealing paragraph 3 of article 41 (Transitional allowance) of the contested Law, in the context of the category of the foreign service of the Republic of Kosovo, with the entrance into force of the Judgment, entails the obligation to treat this category according to paragraph 1 of article 41 (Transitional allowance) of the contested Law.

Thirdly, declaring as contrary to the Constitution and, as a result, repealing paragraph 4 of article 41 (Transitional Allowance) of the contested Law, entails the obligation to level up the salaries from the entry into force of the Judgment, of the category of those employed after the entry into force of the aforementioned law, based on its article 4 (Principles of salary system) of the contested Law, according to which, among others, “everyone, without any discrimination, shall be entitled to receive equal pay for equal work”.

Fourth, notwithstanding the fact that (i) paragraph 6 of article 6 (Basic Salary) of the contested Law, which is related to the amount of the allowance for work experience; and (ii) paragraph 2 of article 2 (Scope) of the contested Law in conjunction with the provisions specified in the enacting clause of the Judgment, have been assessed as being contrary to the Constitution, the Court has not repealed the same, because (i) the repeal of the first in conjunction with the fact that the contested Law also repeals Law no. 03/L-147 on Salaries of Civil Servants, would result in a legal vacuum regarding the right to allowance to salary for work experience; while (ii) the repeal of the second, would affect the implementation of the contested Law in its entirety. Consequently, based on article 116 [Legal Effect of Decisions] of the Constitution, the Court has ordered the Assembly, to amend and/or supplement the aforementioned articles in accordance with the Constitution and the Judgment of the Court, within a period of six (6) months after the entry into force of this Judgment, with the clarification that in the context of (i) paragraph 6 of Article 6 (Basic Salary) of the contested Law, the rights related to the allowance of the work experience, must be specified in the respective amending/supplementation of the contested Law by the Assembly, but with effect from the entry into force of this Judgment; whereas (ii) paragraph 2 of article 2 (Scope) of the contested Law, the functional, organizational and budgetary independence of constitutionally independent institutions, shall be interpreted and implemented in accordance with the Constitution and the Court’s Judgment. The latter, taking into account the necessary preparations for the enforcement of this Judgment, has determined that this Judgment shall enter into force on 1 February 2024.

You can read the notification regarding the Judgment by clicking here

You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here

2. KO55/23
Applicant: President of the Assembly of the Republic of Kosovo
Published on: 25 January 2024
Request for constitutional review of the proposed 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

The Court assessed 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 Judgment initially clarifies that the proposed constitutional amendments regarding the Vetting in the Justice System, 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 with 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. 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; (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.

In the assessment of the proposed constitutional amendment no. 29, 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 emphasizes 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.

The Judgment 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. 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 with 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.

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Resolutions on Inadmissibility
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II.
In one (1) Resolution on Inadmissibility published by the Court, the latter found that the Applicant’s Referral is inadmissible pursuant to paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, paragraph 2 of Article 47 (Individual Requests) of the Law, item (b) paragraph (1) of Rule 34 (Admissibility Criteria) of the Rules of Procedure, as a result of non-exhaustion of legal remedies in the substantial sense.

3. KI71/22
Applicant: Muhamet Mehmeti
Published on: 18 January 2024
Request for constitutional review of Judgment [Rev. no. 398/2021] of the Supreme Court of the Republic of Kosovo of 20 December 2021

You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here

Decisions
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III.
In one (1) Decision to reject the Referral published by the Court, the latter found that the Referral is rejected based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 47 (Individual Requests) of the Law, item (b) paragraph (2) of Rule 54 (Dismissal and Rejection of Referrals ) of the Rules of Procedure, because the latter is incomplete.

4. KI176/22
Applicant: Gani Bërnjashi
Published on: 17 January 2024
Request for constitutional review of Judgment [PAKR. no. 140/2019] of the Court of Appeals of the Republic of Kosovo, of 17 April 2022

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Note:

This notification was prepared by the Secretariat of the Court solely for informational purposes. The full texts of the decisions have been served on all parties involved in the cases and will be published in the Official Gazette of the Republic of Kosovo within the specified deadlines.