Constitutional Court

KI195/22, Applicant: Besim Morina, Constitutional review of Judgment [AA. no. 11/2022] of the Supreme Court of Kosovo, of 25 August 2022

Keywords: individual referral, gender discrimination, gender quota, passive right of vote

The Constitutional Court of the Republic of Kosovo decided regarding the Referral in case KI195/22, with Applicant Besim Morina, for the constitutional review of the Judgment [AA. no. 11/2022] of 25 August 2022 of the Supreme Court of the Republic of Kosovo, submitted to the Court based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo.

The Court unanimously found that: (i) the Referral is admissible; and that (ii) Judgment [A.A. no. 11/2022] of 25 August 2022, of the Supreme Court of Kosovo is not contrary to Article 24 [Equality Before the Law] and Article 45 [Freedom of Election and Participation] of the Constitution of the Republic of Kosovo in conjunction with Article 14 (Prohibition of discrimination) of Protocol no. 1 of the European Convention on Human Rights and Article 3 (Right to free elections) of Protocol no. 1 of the European Convention on Human Rights.

The circumstances of the present case are related to the local elections of 17 October 2021, where the Applicant was a candidate for member of the Municipal Assembly in the Municipality of Kamenica from among the political entity the Alliance for the Future of Kosovo. This political entity had won four (4) seats, while the Applicant managed to win one hundred and twenty seven (127) votes, which were not sufficient to be elected the member of the Municipal Assembly. However, after the resignation of Ms. D. K., the member of the Municipal Assembly from the ranks of the abovementioned political entity, the latter was replaced by the Central Election Commission with Ms. K. M., a candidate of the same gender, also from the same political entity, which in the local elections had received 4 votes less than the Applicant.

The Applicant challenged the relevant replacement in the Central Election Commission, and then, in the Election Complaints and Appeals Commission, as well as in the Supreme Court, claiming that his rights to equality before the law and electoral rights were violated according to the provisions of articles 24 [Equality Before the Law] and 45 [Freedom of Election and Participation] of the Constitution, respectively, because according to the claim in the present case of replacement, priority should be given to the result of the vote and not to the replacement of members of the Municipal Assembly with a candidate of the same gender, since at the level of the Municipal Assembly the quota of thirty percent (30%) was exceeded, taking into account that of the twenty-seven (27) members of the Municipal Assembly, fifteen (15) or 55.55%, were men and twelve (12) or 44.40%, were women. In the context of these allegations, the Applicant also referred to the Court’s Judgment in cases KI45/20 and KI46/20 of 26 March 2021, with Applicants Tinka Kurti and Drita Millaku, which, among other things, determined that gender quotas should to be applied only until reaching the minimum of thirty percent (30%) within the political entities, while beyond the quotas defined in the law, the respective replacements must be based on merit, namely the votes won in the respective elections.

The aforementioned authorities rejected the Applicant’s allegations, among others, because based on paragraphs 3 and 4 of Article 8 (Distribution of seats in the Municipal Assembly), as well as paragraph 10.3 (a) of Article 10 (Replacement of members of Municipal Assembly) of Law no. 03/L-072 on Local Elections (i) at least thirty percent (30%) of the total number of seats of the political entity must be filled by candidates of the opposite gender; and (ii) members of the Municipal Assembly are replaced by candidates of the same gender.

The Applicant, before the Court challenged the decision-making of the responsible institutions, claiming that the latter were rendered in violation of the rights guaranteed by Articles 24 [Equality Before the Law] and 45 [Freedom of Election and Participation] of the Constitution, in conjunction with Article 14 (Prohibition of discrimination) of the European Convention on Human Rights and Article 3 (Right to free elections) of Protocol no. 1 of the aforementioned Convention.

In assessing the Applicant’s allegations, the Court first elaborated (i) the general principles of its case law and that of the European Court of Human Rights, regarding equality before the law and the right to be elected; including those stemming from the relevant Opinions and Reports of the Venice Commission on gender equality, in particular gender quotas as specific measures to address the actual inequality between the genders in political representation; and then (ii) applied the latter to the circumstances of the present case.

In this regard, the Court, referring also to the principles established by the Court’s Judgment in cases KI45/20 and KI46/20, examined: (i) whether the difference in treatment is “prescribed by law”; (ii) whether the difference in treatment pursued a “legitimate aim”; and (iii) if there is a relationship of “proportionality” between the difference in treatment and the aim that is intended to be achieved, and found that the contested acts were not rendered in violation of the rights of the Applicant, because based on Law no. 03/ L-072 on Local Elections, the minimum representation of thirty percent (30%) is also determined at the level of the political entity and not only at the level of the Municipal Assembly. While thirty percent (30%) representation in the respective Municipal Assembly was achieved, this was not the case in the context of the political entity.

As a result, the Court concluded that the determination of the minimum representation of the minority gender at a minimum of thirty percent (30%), as such, is necessary, in order to enable the representation of the underrepresented gender, namely women, in the Municipal Assembly of Kamenica. clarifying that the Applicant was not discriminated against on the basis of gender, since the candidate K.M. was next in line, in the context of fulfilling the minimum quota of thirty percent (30%) through the election result within the aforementioned political entity.