Constitutional Court

KO79/18, Applicant: The President of the Republic of Kosovo, Request for interpretation of Article 139, paragraph 4, of the Constitution of the Republic of Kosovo

KO79/18, Resolution adopted on 2 November 2018, published on 03.12.2018

Keywords: institutional referral, Central Election Commission, parliamentary groups, constitutional issues, jurisdiction of the Court

The Applicant requested the Constitutional Court to interpret Article 139 [Central Election Commission] paragraph 4 of the Constitution of the Republic of Kosovo, asking the following questions: from which parliamentary groups should be appointed members of the CEC: a) from the parliamentary groups that have emerged from the political entities that won the elections for the Assembly of Kosovo? or b) from the parliamentary groups created after the constitution of the Assembly of the Republic of Kosovo?”

The Court first examined whether the submitted Referral meets the admissibility requirements, as established in the Constitution and further specified in the Law on the Constitutional Court and in the Rules of Procedure of the Court.

The Applicant based his request for interpretation of Article 139 (4) of the Constitution on Article 84 (9), and Article 112, paragraph 1 of the Constitution.  In this respect, the Court explained that the Constitutional Court, pursuant to Article 113, paragraph 1 of the Constitution, has jurisdiction to decide only on cases brought before it in a legal manner by the authorized party. In this regard, the Court is the final authority for the interpretation of the Constitution under Article 112, paragraph 1 of the Constitution, in relation to the cases brought before it, as provided by Article 113. The Court emphasized that it does not deal with interpretations of matters relating to legal actions or inactions of the constitutional institutions, for which it is not authorized under Article 113 of the Constitution. Therefore, Article 112, paragraph 1, of the Constitution cannot be interpreted outside the context of Article 113 of the Constitution. Concerning the meaning and limits of Article 84 (9) of the Constitution, the Court notes that the referrals filed on this basis can only be admissible within the regular jurisdiction of the Court, clearly and explicitly established in Article 113, paragraphs 2 and 3.

The Court further explained that in its previous case law, applying the broader understanding of the notion of “constitutional questions”, examined the referrals that are not explicitly included within the limits of its jurisdiction under Article 113, paragraphs 2 and 3 of the Constitution. In addition, in its case law, the Court also noted that it was in its discretion to decide whether the matter raised was a “constitutional question” and to decide on a case-by-case basis. The Court, in fact, assessed that not every issue that the Applicant claims to raise a constitutional question may be such a matter per se.

The Court further explained that the Court’s earlier case law regarding the addressing of the referrals submitted in a broad meaning of the notion of “constitutional questions” should be understood in the spirit of the process of establishing the foundations of the constitutional adjudication and of the social need that the Court in its beginnings is included in interpretations of specific articles of the Constitution, in particular when the questions raised are related to the exercise of the competencies of the President established by the Constitution; when the issues raised have affected the separation of powers; in preserving the constitutional order; as well as when the issues raised had fundamental implications for the functioning of the constitutional system of the country.

However, the Court reiterates that the content of the provision of Article 113 of the Constitution, taken in its entirety, is clear and specific with regard to the competencies of the President deriving from the context of an authorized party before the Constitutional Court. Therefore, it follows that Article 113 represents the basic and sole jurisdictional foundation of the Court with respect to the authorizations of the President as an authorized party before the Constitutional Court.

Therefore, the Court finds that the questions raised by the Applicant before the Court do not fall within the scope of the jurisdiction of the Constitutional Court, as established in Article 113. Therefore, in accordance with Article 113, paragraph 1 of the Constitution, the Court concludes that the Referral is inadmissible.