Constitutional Court

The Applicants, a group of 34 Assembly Deputies, filed a Referral pursuant to Article 113.5 of the Constitution contesting the Assembly’s decision to elect Behgjet Pacolli as President of Kosovo on its third ballot, alleging that the election proceedings violated Article 86 of the Constitution in three respects: the decision lacked the two-thirds quorum required for a Presidential election under Article 86.4; there was only one candidate for the position, whereas Article 86.5 requires at least two candidates; and, there was an impermissible interruption during the election proceedings, In his response, Mr. Pacolli contended that the Assembly quorum requirement of Article 69.3 of the Constitution merely requires the presence of more than one-half of the Deputies, which was fulfilled at the beginning of the disputed session, adding that the departure of Deputies from the session were effectively votes against him, so the quorum existed. Mr. Pacolli argued that Article 86.3 does not require the Assembly to nominate more than one Presidential candidate, asserting that the two-thirds vote and dissolution provisions of Articles 86.5 and 86.6 apply only in a situation where more than two candidates are nominated for the post, Mr. Pacolli also argued that the Assembly President is the final interpreter of the Assembly’s Rules pursuant to Article 17.1 of the Assembly’s Rules of Procedure, and that he approved the request for a break in the election proceedings.

The Court held that the Referral was admissible because the Applicants, members of a group comprised of 10 or more Assembly Deputies, were authorized parties and had met the 8-day deadline pursuant to Article 113.5, and had complied with the requirements of Article 42 of the Law of the Constitutional Court by identifying its members, providing necessary signatures, identifying the challenged decision, specifying the Constitutional provisions allegedly violated, and providing supporting evidence, First, the Court held that Article 86 is breached when Assembly Deputies only nominate one candidate for President, emphasizing that the intent of the drafters of the Constitution to embrace a more democratic system in which more than one candidate is a prerequisite to a Presidential election. The Court noted the absence of language allowing a Presidential election with only one candidate, citing the Constitutions of Albania and Hungary as examples. The Court concluded that the election in this case was invalid. Second, the Court concluded that the election was also invalid because of a lack of the 100% quorum mandated by Article 86, which obliged all 120 Assembly Deputies to vote (with the exception of those who had been properly excused by the President of the Assembly) in a Presidential election. In that regard, the Court emphasized that Deputies have a duty to participate in Assembly proceedings. Finally, the Court noted that Article 86 and the Rules of Procedure for the Assembly were silent on whether a break in Presidential election proceedings is allowed, highlighting that its duty is only to review allegations of Constitutional violations and concluding that a break in the proceedings did not encompass a constitutional issue under Article 86, The Court concluded that the Applicants had not submitted evidence of a Constitutional violation, For the reasons stated, the Court issued a Judgment declaring that the Referral was admissible and, by seven votes in favor and two votes opposed, that the Assembly decision concerning the election of the President violated Article 86 and that it was, therefore, invalid