Constitutional Court

KI69/21, Applicants: Partia Rome e Bashkuar e Kosovës (PREBK) and Partia Liberale Egjiptiane (PLE), represented by Albert Kinolli and Veton Berisha, respectively, Constitutional review of Judgment [AA.no.29/2021] of the Supreme Court of the Republic of Kosovo of 12 March 2021

KI69/21, Judgment of 20 April 2023, published on 31 May 2023

Keywords: individual referral, post-electoral disputes, the right to be elected, the right to vote; effective participation of non-majority communities in public institutions; the vote is personal, equal, free and secret

The essence of the findings of the Judgment: the vote in the Republic of Kosovo is personal, equal, free and secret. The vote cannot be annulled/declared invalid based on the ethnic affiliation of the voter.

The circumstances of the concrete case are related to the early elections for the Assembly of the Republic of Kosovo held on 14 February 2021. The two candidates, representatives of the political entities PLE and PREBK, respectively, and who according to the certified results of the aforementioned parliamentary elections, had failed to win seats in the Assembly, claim that their electoral rights have been violated as a result of the respective decisions of the Elections Complaints and Appeals Panel (ECAP) and the Supreme Court and which the respective applicants are contesting before the Court, claiming violations of paragraph 4 of article 58 [Responsibilities of the State], article 45 [Freedom of Election and Participation] and article 64 [Structure of Assembly] of the Constitution of the Republic of Kosovo.

Regarding one of the aforementioned candidates, namely the applicant PREBK, represented before the Court by Albert Kinolli, the Judgment clarifies that the same has not exhausted the legal remedies provided by law as required by paragraph 7 of article 113 [Jurisdiction and Authorized Parties] of the Constitution, because the same has not appealed the decisions of the ECAP of 7 and 10 March 2021, respectively, before the Supreme Court. As for the other applicant, namely PLE, represented before the Court by Veton Berisha, the Judgment clarifies that the same challenges the Judgment of the Supreme Court only pertaining to the refusal to annul/declare invalid the ballots in specified polling stations in the municipalities of Kamenica, Graçanica and North Mitrovica. However, the applicant did not appeal to the Supreme Court the supplementary decision of the ECAP of 10 March 2021 which had decided regarding North Mitrovica, therefore, failing to exhaust the legal remedies established by law. Consequently, based on to the applicant’s referral, the Court will review the constitutionality of the contested Judgment of the Supreme Court only to the extend it has been contested, namely pertaining to the refusal to annul/declare invalid the ballots in the specified polling stations in the municipalities of Kamenica and Graçanica, respectively.

In the aforementioned context, the Judgment recalls that as a result of the failure to obtain sufficient votes to win a seat in the Assembly in the parliamentary elections of 14 February 2021, the applicant submitted the relevant complaints/appeals to the ECAP and subsequently to the Supreme Court, claiming that the votes won by Romani Iniciativa were “orchestrated and coordinated” with the “political entity Lista srpska” and that as a result, all the votes that this political entity has won and that exceed the number of voters of the Roma, Ashkali and Egyptian communities in the respective polling stations, should be declared invalid and removed from the election results.

The ECAP and the Supreme Court based their decision-making on these claims and referring to paragraph 4 of article 58 of the Constitution and paragraph 2 of article 64 of the Constitution, but disregarding article 45 of the Constitution, had annulled/declared invalid ballots in polling stations in the municipalities of Leposaviq, Novobërda, Ranillug, Partesh and Kllokot, in essence, establishing the standard that exercising the right to vote and to be elected in the legal order of the Republic of Kosovo is conditional on the ethnic affiliation of the voter and the voted. More precisely, according to the ECAP and the Supreme Court, (i) pertaining to the twenty (20) guaranteed seats in the Assembly, in the context of passive electoral rights, parties, coalitions, citizens’ initiatives and independent candidates, who have declared to represent a respective community that is not the majority, can only be voted for by the voters of the same community; and consequently, in the context of active electoral rights, voters can only vote for the parties, coalitions, citizens’ initiatives and independent candidates who have declared to represent their community; and (ii) votes obtained for parties, coalitions, citizens’ initiatives and independent candidates who have declared to represent a community that is not in the majority and that exceed the number of voters who are supposed to belong to the same community in a given polling station, are declared invalid, because otherwise “there is no objective connection between the voters and the voted subject”. ECAP and the Supreme Court had based the calculation on the proportion between the number of ballots and voters who are supposed to represent the community that is not in the majority on the “data obtained from the Statistics Agency of the Republic of Kosovo in 2011, but also on credible reports of the OSCE and Poll Books.”

Before the Court, the applicant in essence, claims that (i) the ballots in the respective polling stations must be annulled/declared invalid in proportion to the number of voters representing the relevant community because otherwise, the elected representative in the Assembly “lacks the objective connection with the community” that the same declares to represent; and (ii) the guaranteed seats in the Assembly according to paragraph 2 of article 64 of the Constitution can only be won if voted for by the same community that the parties, coalitions, citizens’ initiatives and independent candidates competing for these seats declare to represent. Having said this, the applicant himself emphasizes that in the Republic of Kosovo, there is a lack of a “precise legal basis”, also emphasizing that “there are no precise international practices and norms” which expressly require that the guaranteed seats for communities that are not a majority can only be won if they are voted for by the same community they declare to represent. In the absence of these constitutional and legal bases, the applicant claims that based on paragraph 4 of article 58 of the Constitution, the Court must oblige the Assembly to take adequate measures, through the adoption of laws, that would ensure the effective participation of communities that are not the majority in Kosovo, so that, among others, the guaranteed seats in the Assembly of Kosovo would be won only if they are voted for by the voters of the same community that they declare to represent, and more precisely that “communities would be registered in separate electoral rolls so that only the voters of the communities found in those rolls can vote for the representatives who have declared to represent those communities in guaranteed seats”.

In reviewing the constitutionality of the challenged Judgment of the Supreme Court, the Court, as far as it is relevant to the circumstances of the concrete case, elaborated (i) the general principles on electoral rights according to the Constitution; (ii) the general principles on the representation of communities that are not the majority in Kosovo according to the Constitution and the Framework Convention of the Council of Europe for the Protection of National Minorities; and (iii) the general principles according to the Code of Good Practice in Electoral Matters of the Venice Commission and the Lund recommendations on the Effective Participation on National Minorities in Public Life. The Court has also particularly elaborated the case-law of the European Court of Human Rights (ECtHR) in the interpretation of article 3 of Protocol no. 1 of the European Convention on Human Rights (ECHR) in the context of (i) the procedures necessary for the annulment of election results, including the declaration of invalidity of votes; and (ii) the electoral rights and national minorities. In the context of the latter, the Judgment also elaborates on the opinions and reports of the Council of Europe and the Opinions of the Venice Commission, including but not limited to (i) the Report on Electoral Rules and Affirmative Action for National Minorities’ Participation in Decision-Making Process in European Countries; (ii) Protection of National Minorities and Elections; and (iii) Summary of Opinions and Reports related to Electoral Systems and National Minorities.

The Judgment clarifies that the essential issue raised in this case is whether the votes of the citizens of the Republic of Kosovo can be annulled/declared invalid based on their supposed ethnic affiliation. In this context and based on article 53 [Interpretation of Human Rights Provisions] of the Constitution, the Judgment emphasizes that the Court is obliged to interpret fundamental rights and freedoms in harmony with the case-law of the ECtHR, and in the context of electoral rights, in harmony with case-law in the interpretation of article 3 of Protocol no. 1 of the ECHR. Based on the latter, among others and as elaborated in the Judgment, (i) it is not the role of the courts to determine the will of the voters; and (ii) any declaration of invalidity of votes must be based on a clear legal basis. Based on this case-law, the Judgment further elaborates on whether in the Republic of Kosovo, ballots can be declared invalid based on the supposed ethnicity of the voters.

Initially and in the context of the validity and/or invalidity of the ballots, the Judgment clarifies that (i) based on paragraph 1 of article 64 of the Constitution, seats in the Assembly are allocated in proportion to the number of valid votes won by the political entities; (ii) the Law on General Elections, while it does not define the criteria on the basis of which the invalidity of votes can be determined, defines the ECAP as an independent body competent to decide on the complaints/appeals pertaining to the election process; (iii) the ECAP has the power to annul/declare invalid ballots in exceptional circumstances, but always based on the applicable rules, namely the Constitution, the Law on General Elections and the relevant regulations of ECAP and the Central Elections Commission (CEC).

In this context, the Judgment emphasizes that article 45 of the Constitution is the fundamental article that regulates electoral and participation rights. The same stipulates that (i) every citizen of the Republic of Kosovo who has reached the age of eighteen, even if on the day of the elections, has the right to elect and be elected, unless this right is limited by a court decision; (ii) the vote is personal, equal, free and secret; and (iii) state institutions support the possibility for every person to participate in public activities and everyone’s right to democratically influence the decisions of public bodies.

The Judgment clarifies that based on article 45 of the Constitution, the active aspect of electoral rights, namely the right to elect, is subject to only two constitutional limitations, age and the respective court decision. The same rights are guaranteed through the Law on General Elections. The latter, in Chapter II, defines the Voter Eligibility, Voters List and the Challenge and Confirmation Period for the Voters List. As far as it is relevant for the circumstances of the concrete case, in its article 5 (Voter Eligibility), it also defines some additional restrictions related to the right to vote, while in article 7 (Voters List), it defines that citizens eligible to vote are those registered in the Central Civil Registry, specifying that the necessary information for the Voters List are “name, surname, date of birth, address, and the Polling Center where he/she is assigned to vote”, these data being written in the languages and alphabets in which the original notes are kept in accordance with the Law on the Use of Languages in Kosovo. The law and the applicable regulations of the CEC do not contain any obligation for voters to declare their ethnicity for the purposes of the Voters List and the exercise of active electoral rights. Such an approach is in fact in compliance with the international instruments, including as clarified through the Explanatory Report of the Code of Good Practice in Electoral Matters, and according to which, among others, neither candidates nor voters should be required to indicate their affiliation as to national identity. The characteristics of the vote that are related to its freedom and secrecy are guaranteed by all international instruments, as explained in detail in the Judgment. Moreover, based on the applicable regulations of the ECAP and the CEC, the declaration of ballots invalid includes only the circumstances in which (i) more than one political entity is marked on the ballot; (ii) the way it is marked makes the voter’s intention unclear; (iii) the ballots were not stamped with an official seal; and (iv) the voter marks only the candidate and not the political entity. The aforementioned regulation does not define any criteria on the basis of which ballots can be declared invalid based on the ethnicity of the voters.

Whereas, in the context of the right to be elected, namely the passive aspect of electoral rights, article 45 of the Constitution, with the exception of age and limitation by court decision, does not define any other limitations. However, in the context of parliamentary elections, this article must be read and interpreted jointly with articles 64 [Structure of Assembly], 71 [Qualification and Gender Equality] and 73 [Ineligibility] of the Constitution, respectively. The first determines that twenty (20) seats in the Assembly of Kosovo are guaranteed for parties, coalitions, citizens’ initiatives and independent candidates having declared themselves representing the Kosovo Serb community or other communities, regardless of the number of seats won, while the second and the third, determine the necessary qualifications to become a candidate and the circumstances of the ineligibility to run as a candidate for deputy of the Assembly. For the circumstances of the concrete case, the connection of articles 45 and 64 of the Constitution is relevant.

Further, the Judgment clarifies that the secret ballot is also noted by article 64 of the Constitution, also focusing on the open electoral lists. This article also points out that the Assembly has one hundred and twenty (120) deputies elected by secret ballot, based on open lists, where twenty (20) seats are guaranteed for the representation of communities that are not in the majority in Kosovo, in the manner specified in paragraph 2 of article 64 of the Constitution. These guarantees are also specified in article 110 [General Provisions] of the Law on General Elections, according to which, among others, Kosovo is considered one electoral area with many candidates. Questions related to the procedures pertaining to the registration of political parties and political entities are specified under Chapter III (Political Party Registration and Political Entity Certification) of this law. None of these procedures stipulates exceptions or special procedures in terms of political entities competing for the guaranteed seats in the Assembly. Such a criterion, based on paragraph 2 of article 64 of the Constitution, in the context of the registration of the aforementioned political entities, is set forth in the applicable rules of the CEC, and which in the framework of the necessary documentation for the relevant registration, also foresee the “declaration of the ethnicity of the founder of the political initiative”.

Having said that, guaranteeing certain seats in the Assembly for the communities that are not in the majority, based on the constitutional and legal provisions as explained above, not necessarily entails the obligation that these seats can only be won if they are voted for by the same community that is not in the majority, thus also conditioning the active electoral rights to ethnicity. The reports and opinions of the Venice Commission, including the explanatory reports of the international instruments as noted in the Judgment, clarify that the electoral systems in all European countries and beyond, in the context of accommodating the respective national minorities and to the extend relevant in the circumstances of the concrete case, among others, emphasizing that (i) there are electoral systems which, in the context of passive electoral rights, provide for additional guarantees regarding national minorities, including guaranteed seats in the respective assemblies, while in the context of active electoral rights, the emphasis is put on the freedom and secrecy of the vote; and (ii) exceptionally and in special cases, in the context of active electoral rights, they enable dual voting or special electoral lists for national minorities, which mechanisms are precisely provided for in the applicable constitutions and/or laws. In the Republic of Kosovo, such a system, which stipulates a special electoral system for communities that are not in the majority in the context of active electoral rights, is not provided by the Constitution nor in the Law on General Elections. According to the Constitution, the vote is personal, free, equal and secret, and, among others, according to the Code of Good Practices for Electoral Matters, neither candidates nor voters are obliged to reveal their belonging to a national minority.

Moreover, the Judgment also refers to a recent case of the ECtHR, namely Bakirdzi and E.C. v. Hungary, which became final on 3 April 2023. This case is very relevant to the circumstances of the concrete case, because, among others, it concerns (i) the free expression of the will of the voters; (ii) shortcomings of the voting system of national minorities affecting the secrecy of the ballot; (iii) systems that require a national minority candidate to be elected only by the voters of the same minority; and (iv) systems that allow national minority voters to vote only for their respective national minority lists and not for general political party lists. In this case, and despite the fact that the Hungarian law itself determines the connection between active and passive electoral rights with the respective ethnicity related to designated seats in the assembly, the ECtHR, in the context of the circumstances of the respective case, held that the electoral rights of the voters of national minorities were violated in contradiction with the guarantees established through article 3 of Protocol no. 1 of the ECHR, emphasizing, among others, that (i) there are doubts that a system in which a vote can only be cast for a specific closed list of candidates and which requires voters to abandon their party affiliation in order to have representation as members of a national minority, ensures “free expression of the opinion of the people in the choice of the legislature”; and (ii) the right to complete secrecy of the ballot in such circumstances is not available to national minority voters.

Based on the aforementioned clarifications, the Judgment notes that (i) according to paragraph 2 of article 45 of the Constitution, the vote is personal, equal, free and secret; (ii) according to paragraph 2 of article 64 of the Constitution, regardless of the number of seats won, twenty (20) seats in the Assembly belong to communities that are not in the majority in the manner specified in this article; (iii) the Constitution, the international instruments specified in its article 22 [Direct Applicability of International Agreements and Instruments], the case-law of the ECtHR and the Law on General Elections, in the context of active electoral rights, do not include the obligation for voters to elect only parties, coalitions, citizens’ initiatives and independent candidates that have declared to represent the community that those voters belong to and in the context of passive electoral rights, neither the guaranteed seats in the Assembly for parties, coalitions, citizens’ initiatives and independent candidates, are conditional only on the vote of the citizens belonging to the communities they declare to represent; (iv) if the state opts for such an electoral system, the same must be prescribed through laws adopted by the Assembly and in accordance with constitutional provisions and values; and (v) according to the case-law of the ECtHR, it is not the role of the courts to determine the will of the voters and any declaration of invalidity of votes, must be based on a clear legal basis and on precise procedure followed, as stipulated in the applicable laws and regulations. In the context of the latter, the Judgment clarifies that within the electoral system in the Republic of Kosovo, there is no legal basis on which ballots can be declared invalid in certain polling stations, based on assumptions about the ethnicity of voters, including the proportion between the number of ballots that a party, coalition, citizens’ initiative and independent candidate declare to represent a community that is not in the majority, may have won, and the calculated number of voters of the same community in the respective polling stations.

Consequently, and in the absence of a constitutional and/or legal basis for declaring the ballots invalid in certain polling stations in the municipalities of Kamenica and Graçanica, respectively, the Court finds that the refusal to annul/declare the ballots invalid in the aforementioned municipalities through the challenged Judgment of the Supreme Court, has not resulted in the violation of the applicant’s rights to be elected in the Assembly of Kosovo, under paragraph 1 of article 45 of the Constitution in conjunction with article 3 of Protocol no. 1 of ECHR.

In fact, the applicant itself emphasizes the fact that there is no constitutional and/or legal basis in the Republic of Kosovo to declare ballots invalid based on the ethnicity of the voters. As a result, it requests the Court to oblige the Assembly of the Republic of Kosovo to take adequate measures, through adoption of laws which would prescribe special lists for communities that are not in the majority, through which the effective participation of communities would be ensured, so that, among others, the guaranteed seats in the Assembly of Kosovo could be won only if they are voted for by members of the same community that they declare to represent.

Having said this, among others, the Judgment clarifies that in the context of referrals filed based on paragraph 7 of article 113 of the Constitution, as are the circumstances of the concrete case, individuals are only authorized to refer violations by public authorities of their own individual rights and freedoms. Whereas, based on article 63 [General Principles] of the Constitution, the legislative institution of the Republic of Kosovo is the Assembly. The latter has full competence to determine the model and specifics of the electoral system through its adopted laws. Based on the principle of separation and balancing of powers, the laws adopted by the Assembly may be subject to constitutional review by the Constitutional Court, if contested before it based on the provisions of article 113 of the Constitution.

Finally, the Judgment emphasizes three other issues and which are related to the circumstances of the concrete case, as follows (i) another Judgment of the Supreme Court which decided similarly as in the circumstances of the applicant; (ii) the obligation to declare votes invalid only based on a clear legal base and respective procedure followed including addressing claims of irregularities, including possible criminal offenses, pertaining to the application of election rules and procedures, as stipulated in the applicable laws; and (iii) the effects of this Judgment.

As it pertains to the first issue, the Judgment clarifies that the applicant in his submission also referred to another judgment of the Supreme Court, namely [AA.nr.30/2021], which was issued following the appeals of the political entities representing the Bosniak community Lista Boshnjake, Unioni Social Demokrat and Nova Demokratska Stranka, and which, according to the applicant, based on the same interpretation of paragraph 4 of article 58 of the Constitution, annulled/declared invalid the ballots in all polling stations which were contested by the appellant political entities. The Court emphasizes that this Judgment has never been challenged before the Court and, consequently, has not been subjected to its constitutional review.

As it pertains to the second issue, the Judgment clarifies that paragraph 1 of article 64 of the Constitution refers specifically to the “number of valid votes” in determining the seats won in the Assembly of the Republic, while the relevant legal basis and the procedure for declaring votes invalid are stipulated in the Law on General Elections and other applicable electoral regulations. The Judgment emphasizes the fact that, based on the case-law of the ECtHR but also the applicable laws of the Republic of Kosovo, the declaration of votes invalid must be based on a clear legal basis. Furthermore, the Court emphasizes that criminal offenses against voting rights are defined in Chapter XVIII of the Criminal Code of the Republic of Kosovo. Allegations for violations during the electoral process, including the abuse of the right to vote and the procedures as to how such violations are addressed, are specified in the Law on General Elections, but also in the Criminal Code and the Criminal Procedure Code of the Republic of Kosovo.

Finally, and pertaining to the third issue, namely the effects of this Judgment, the latter clarifies that, as the Court has specified in previous judgments related to individual rights in post-election disputes related to parliamentary elections, namely in (i) Judgment KI207/19, with applicants NISMA Socialdemokrate, Aleanca Kosova e Re dhe Partia e Drejtësisë, regarding the constitutional review of Judgments [A.A.U.ZH.no.20/2019] of 30 October 2019 and [A.A.U.ZH.no.21/ 2019] of 5 November 2019 of the Supreme Court of the Republic of Kosovo; and (ii) the Judgment in cases KI45/20 and KI46/20, with applicants Tinka Kurti and Drita Millaku, regarding the constitutional review of the Decisions [AA. no. 4/2020] of 19 February 2020 and [AA.no.3/2020] of 19 February 2020 of the Supreme Court, based on the principle of legal certainty, this Judgment cannot produce retroactive legal effect on the certified election result pertaining to the parliamentary elections of 14 February 2021.

The Court, unanimously, decided to (i) declare the referral submitted by PREBK inadmissible as a result of non-exhaustion of the legal remedies defined by law; and (ii) to declare the referral submitted by PLE admissible for review on merits; while, by majority, it decided to (iii) find that the Judgment [AA.no.29/2021] of 12 March 2021 of the Supreme Court did not violate the right of the applicant, namely PLE, to be represented in the Assembly after the parliamentary elections of 14 February 2021, according to paragraph 1 of article 45 [Freedom of election and participation] of the Constitution in conjunction with article 3 (Right to free elections) of Protocol no. 1 of the European Convention on Human Rights; and (iv) hold that this Judgment does not have retroactive effect and that, based on the principle of legal certainty, it does not affect the rights of third parties. The Judgment will be supplemented by a concurring opinion.