Constitutional Court

KO43/19, Applicant: Albulena Haxhiu, Driton Selmanaj and thirty other deputies of the Assembly of the Republic of Kosovo, Constitutional review of Law No. 06/L-145 on the Duties, Responsibilities and Competences of the State Delegation of the Republic of Kosovo in the Dialogue Process with Serbia 

KO43/19, Judgment of 13 June 2019, published on 27 June 2019

Keywords: institutional referral, the competences of the Assembly, the competences of the Government and the competencies of the Prime Minister, the separation of power, democratic values and the rule of law,

The Referral was submitted by thirty and two (32) deputies of the Assembly of the Republic of Kosovo based on Article 113 paragraph 5 of the Constitution. The subject matter was the constitutional review of Articles 1, 2, 4, 10 (paragraph 4 sub-paragraphs 1 and 2) and 11 (paragraph 3) of Law No. 06/L-145 on the Duties, Responsibilities and Competences of the State Delegation of the Republic of Kosovo in the Dialogue Process with Serbia (the challenged Law).  The Applicants alleged that the challenged Law, in its entirety is not in compliance with the Constitution, namely is not in compliance with Article 2 [Sovereignty], Article 4 [Form of Government and Separation of Power], Article 7 [Values], Article 18 [Ratification of International Agreements], Article 20 [Delegation of Sovereignty], Article 65 [Competencies of the Assembly], Article 93 [Competencies of the Government], and Article 94 [Competencies of the Prime Minister] of the Constitution.

Within the challenged Law, the establishment of the state delegation and its scope was foreseen, as well as the institutional hierarchy and decision-making procedures in the process of dialogue with the Republic of Serbia. Further this Law governed the functioning of the state delegation of the Republic of Kosovo for the dialogue with Republic of Serbia, and the latter provided for the organizational structure, activity, and the competences and responsibilities of the state delegation.

The Applicants in essence had three main allegations before the Court:  (i) determining and changing the institutional constitutional and decision-making hierarchy in the dialogue with Serbia; (ii) the legal competences of the state delegation directly interfere with the constitutional competences of the executive and legislative powers, as well as (iii) giving the lex specialis character to the challenged Law. The Applicants also requested the imposition of interim measure.

The Court assessed that the Applicants’ Referral is admissible based on the criteria established by the Constitution, the Law on the Constitutional Court and the Rules of Procedure of the Constitutional Court. In elaborating the merits of the Referral, the Court assessed the Applicants’ allegations of (i) determining and changing the institutional constitutional and decision-making hierarchy in the dialogue with Serbia, and (ii) the legal competences of the state delegation directly interfere with the constitutional competences of the executive and legislative powers, the Court found as follows:

The Court found that the State Delegation, which was established by the challenged Law, is not foreseen by the Constitution, and is not foreseen within the form of government and separation of power. As such, the state delegation cannot be involved in the interaction of separation, control and balance of powers and cannot interfere in the form of governance, namely the structure of separation of power, as defined by Article 4 of the Constitution.

The Court further found that the transfer of competences of the constitutional institutions to the “special mechanism” established in the challenged Law is an interference with the exercise of competences of the constitutional institutions provided by the Constitution. The transfer of competences to the “special mechanism” represents interference in the form of governance, separation of power, and is  not in compliance with the democratic values and the rule of law, as set forth in Article 7 of the Constitution, because it vests in the state delegation the functions which do not comply with constitutional norms.

The Court also found that the constitutional norms, expressly envisaged an obligation regarding the exercise of constitutional competencies in the sphere of foreign policy for the competent institutions. The power to dialogue with a third country cannot be transferred to the state delegation as a “special mechanism” through a lower legal act such as the challenged Law.

In addition, the Court found that the Assembly of the Republic of Kosovo is obliged to oversee the foreign policy within the constitutional competences foreseen under paragraph 12 of Article 65 of the Constitution. The Court also emphasized that paragraph 1 of Article 93 of the Constitution determines the competences of the Government to “propose and implement the internal and foreign policies of the country”, and paragraphs 1 and 9 of Article 94, provide that the Prime Minister as the head of the Government “represents and leads the Government” and “Consults with the President on the implementation of the foreign policy of the country”.

Therefore, the Court concluded that the representation in the sphere of the foreign policy it is the duty of the constitutional institutions of the Republic of Kosovo. This competence is defined by the Constitution, and means, first of all, that any negotiation or other action related to the conclusion of international agreements on behalf of the Republic of Kosovo, must be within the constitutional obligations of the institutions of the Republic of Kosovo. The Court also concluded that the competence to reach international agreements cannot be carried over or transferred from the constitutional institutions to a “special mechanism” as provided by the challenged Law.

The Court, unanimously decided that Articles 1 (paragraph 1), 2, 4, 10 (paragraph 4, sub-paragraphs 1 and 2), and Article 11 (paragraph 3) of Law No. 06/L-145 on the Duties, Responsibilities and Competencies of the State Delegation of the Republic of Kosovo in the Dialogue Process with Serbia, are not in compliance with paragraphs 1, 2, 3 and 4 of Article 4 [Form of Government and Separation of Power], paragraph 1 of Article 7 [Values], paragraph 12 of Article 65 [Competencies of the Assembly], paragraph 1 of Article 93 [Competencies of the Government], and paragraphs 1 and 9 of Article 94 [Competencies of the Prime Minister] of the Constitution.

Therefore, the Court found that as the essential Articles of Law No. 06/L-145 on the Duties, Responsibilities and Competencies of the State Delegation of the Republic of Kosovo in the Dialogue Process with Serbia, are not in compliance with the Constitution, the latter, in its entirety, is incompatible with the Constitution.