Constitutional Court

The Applicant filed a Referral pursuant to Article 113.2(1) of the Constitution, asserting that Articles 14.1.6, 22, 24, 25 and 27 of the Law on Rights and Responsibilities of the Deputy were incompatible with the Constitution on four levels: (1) it provides Deputies with pensions that are more favorable than those offered to other citizens, which is inconsistent with the constitutional principles of equality, rule of law, non-discrimination and social justice; (2) the pensions are clearly disproportionate with average pensions in Kosovo, and are therefore disharmonious with the principles of democracy, equality, non-discrimination and social justice encompassed by Article 7 of the Constitution; (3) the arrangement allows for a retired Deputy’s reinstatement to a public sector or publicly funded job held by the Deputy before service in the Assembly; and, (4) there is no justification for treating Deputies’ pensions so differently from those of other citizens. In response, the Assembly asserted that the Law on Rights and Responsibilities of the Deputy was enacted legitimately, The Court held that the Referral was admissible because the Ombudsperson was authorized by Articles 113.2 and 135.4 of the Constitution to make the Referral, and that the Referral was submitted within the 6-month deadline set by Article 30 of the Law on the Constitutional Court, calculated from the date of the challenged law’s enactment, On the merits, the Court considered the challenged provisions of the legislation, compared them to similar arrangements for legislators in 16 other countries and reviewed relevant decisions by the Constitutional Courts of Croatia, Montenegro and Macedonia, The Court reached five conclusions: (1) the pension arrangement unreasonably deviated from the pension provisions of UNMIK Regulation No. 2005/20 and Law No. 03/L-084; (2) the legislation provided an insufficient definition of the benefit, which does not resemble severance pay, a salary increase, life insurance or bonus, and it may constitute a gift without a clearly demonstrated public purpose, meaning that the Assembly had no constitutional authority to enact it; (3) the disputed pensions were distinctly disproportional to average Kosovo pensions and therefore no apparent legitimate public purpose for such discriminatory treatment; (4) the challenged pensions were 8-10 times higher than basic pensions set by the Kosovo Budget, and such disproportionate treatment raises questions about the Assembly’s consideration of Articles 3, 7 and 24 of the Constitution when enacting the legislation; and, (5) the Assembly never provided a reasonable explanation of the legitimate aim of the disputed legislation, depriving it of the general presumption of Constitutionality, and neither the Minister of Finance nor the Central Bank provided an explanation or justification concerning the fiscal or economic implications of the enactment, which occurred despite strenuous objections by some Deputies, Finally, the Court decided that the pension arrangement was incompatible with the Constitution, but added that the Assembly had the discretion to enact a Constitutionally appropriate pension plan for Deputies and their surviving family members in the event of death or injury, For the reasons stated, the Court issued a Judgment reflecting that the Referral was admissible, concluding that the relevant provisions of the Law on Rights and Responsibilities of the Deputy were not compatible with Articles 3.2, 7 and 74 of the Constitution, invalidating the relevant provisions, holding that the Court’s interim order suspending the implementation of the relevant provisions had become permanent, and declaring that the Judgment was immediately effective