Constitutional Court

KO46/23, Applicant: Abelard Tahiri and 9 (nine) other deputies of the Assembly of the Republic of Kosovo, Constitutional review of Law no. 08/L-121 on the State Bureau for Verification and Confiscation of Unjustified Assets

KO46/23, Judgement of 20 June 2024, published on 29 July 2024

Key words: institutional referral, admissible referral, verification of unjustifiable assets, civil confiscation in rem, equality before the law, retroactive application of the law, burden of proof, legal certainty, equality of arms, foreseeability of law, clarity of law, right to a fair and impartial trial, right to legal remedies, protection of property, right to privacy, State Bureau, independent agency, oversight competence of independent agencies by the Assembly, incompatibility of constitutional functions, judge, deputy Ombudsperson, Auditor-General, procedure for the selection of the Director, the functioning of the Bureau

The Constitutional Court of the Republic of Kosovo has decided in the case KO46/23, with applicants Abelard Tahiri and nine (9) other deputies of the Assembly of the Republic of Kosovo, submitted to the Constitutional Court based on the authorizations under paragraph 5 of article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo, regarding the constitutional review of Law no. 08/L-121 on the State Bureau for Verification and Confiscation of Unjustified Assets.

The Court (i) unanimously decided to declare the referral admissible; and (ii) to hold, by eight (8) votes for and one (1) vote against, that item 2.1 of paragraph 2 of article 2 (Scope) in relation to paragraph 2 of article 34 (Hearing in the first instance) of the contested Law is not in compliance with paragraph 1 of article 7 [Values] of the Constitution and paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of Property) of Protocol no. 1 of the European Convention on Human Rights; (iii) to hold, by eight (8) votes for and one (1) vote against, that point 2.2 of paragraph 2 of article 2 (Scope) in conjunction with paragraph 3 of article 22 (Period of asset verification ) of the contested Law, is not in compliance with paragraph 1 of article 7 [Values] of the Constitution; (iv) to hold, by six (6) votes for and three (3) votes against, that point 1.1 of paragraph 1 of article 10 (Composition of the Oversight Committee and Compensation) of the contested Law, is not in compliance with article 106 [Incompatibility] of the Constitution; (v) to hold, by eight (8) votes for and one (1) vote against, that point 1.2 of paragraph 1 of article 10 (Composition of the Oversight Committee and Compensation) of the contested Law, is not in compliance with paragraph 1 of article 136 [Auditor-General of Kosovo] and paragraphs 1 and 2 of article 137 [Competencies of the Auditor-General of Kosovo] of the Constitution; (vi) to hold, by six (6) votes for and three (3) votes against, that point 1.4 of paragraph 1 of article 10 (Composition of the Oversight Committee and Compensation) of the contested Law, is not in compliance with paragraph 1 of article 132 [Role and Competencies of the Ombudsperson] and paragraph 3 of article 134 [Qualification, Election and Dismissal of the Ombudsperson] of the Constitution; and (vii) to declare null and void, by five (5) votes for and four (4) votes against, in its entirety, the Law no. 08/L-121 on the State Bureau for Verification and Confiscation of Unjustified Assets.

The Judgment initially clarifies that the contested Law establishes the State Bureau for the Verification and Confiscation of Unjustifiable Assets (the State Bureau), introducing into the legal order of the Republic of Kosovo, the concept of civil confiscation of unjustifiable assets, respectively and in essence, the confiscation of assets without the need to prove in criminal procedure that the relevant property was acquired through the commission of a criminal offense. For this purpose, the contested Law establishes the procedure for the verification and confiscation of the assets acquired unjustifiably by official persons and third parties, namely by any natural or legal person to whom the property of the official person has been transferred or who has or may have had a legal interest in the property of the parties in the proceedings. According to the provisions of the contested Law, assets acquired in an unjustified manner are subject to verification starting from 17 February 2008, in principle, within ten (10) years from the moment when the relevant officials cease exercising their functions, with the specification that, exceptionally, assets acquired after the end of exercising the official function may as well be subject to the verification of the assets. The above-mentioned Bureau has the competence to assess the amount of assets of each official compared to the lawful income and in case the assessment results into a discrepancy between the income and the assets exceeding the value of twenty-five thousand (25,000) Euros, may propose the securing of property through an interim measure and afterwards the confiscation of the same following the respective court decision. Considering that the procedure of verification and confiscation of unjustifiable assets is independent from the criminal procedure, the standard of proof is not the criminal standard of “reasonable doubt”, but the civil standard of “balance of probabilities” and according to which, the asset is qualified as un/justifiable, if based on the evidence, the court “believes that something is more likely to be or have happened than not”. Furthermore, and while the State Bureau has the initial burden of proving that the assets whose confiscation is proposed are unjustified, the burden of proving that the assets are in fact justifiable falls on the individual. It should also be noted that, while the State Bureau has full competence to verify and propose the confiscation of assets, it is in the courts’ competence to decide whether the disputed assets are to be subject to confiscation. The Judgment also clarifies that for the purpose of verifying and proposing the confiscation of unjustifiable assets, the contested Law establishes the State Bureau, led by the Director General, with a seven (7) year mandate, and is overseen by an Oversight Committee composed of (i) a judge of the Supreme Court appointed by the President of the Supreme Court, in the capacity of the chair of the Committee; (ii) the Auditor General; (iii) the Director of the Agency for the Prevention of Corruption; (iv) deputy Ombudsperson; and (v) the Director of the Financial Intelligence Unit. This Oversight Committee, which makes decisions with the majority of its members within the decision-making quorum of four (4) of them, has full oversight competence over all functions of the State Bureau, including the adoption of all by-laws.

The essence of the applicants’ allegations, is related to the violation (i) of the principles of the rule of law and of legal certainty, as essential values of the constitutional order; and (ii) of the fundamental rights and freedoms guaranteed by the Constitution, including the applicable international instruments. In essence, the applicants raise three categories of issues before the Court. Firstly, they allege that the mechanisms established through the contested Law for the verification and confiscation of assets do not entail sufficient guarantees for the protection of fundamental rights and freedoms, especially in the context of (i) equality before the law, in view of the fact that the contested Law distinguishes between official persons and other citizens of the Republic of Kosovo and between official persons themselves who exercised functions before and after 17 February 2008; (ii) procedural guarantees related to the verification and confiscation of assets, including the right to a fair and impartial trial, namely equality of arms, presumption of innocence, burden of proof, right not to incriminate oneself and the legal remedies; and (iii) the property rights of the verification subjects. Secondly, they allege that the retroactive application of the law, in addition to the violation of fundamental rights and freedoms, also violates the principle of legal certainty and the values of the Constitution. Thirdly, the applicants allege the violation of the oversight competences of the Assembly in relation to Independent Agencies, because in the circumstances of the concrete case, the oversight competence of the Assembly has been transferred to an Oversight Committee, which is also characterized by constitutional incompatibility of functions, with emphasis on the deputy Ombudsperson, and lack of independence of the State Bureau, including in the context of the manner of electing its Director General.

The applicants’ allegations are opposed by the Ministry of Justice and the Parliamentary Group of the VETËVENDOSJE! Movement, in essence, emphasizing that (i) the contested Law contains sufficient procedural guarantees for the protection of fundamental rights and freedoms and that the content of the same has also been positively evaluated by the Opinions of the Venice Commission; (ii) the difference between official persons and other citizens of the Republic of Kosovo pursues a legitimate aim of fighting corruption in the public sector, furthermore that the retroactive application of the law is not in contradiction with the principle of legal certainty; while (iii) they clarify that the date 17 February 2008 is also related to the “legal circulation of property through bank transactions”, which for the purposes of this law, constitutes decisive evidence in terms of assets’ verification; (iv) the establishment of the Oversight Committee does not affect the oversight competence of the Assembly, moreover, the transfer of the competence for the election of the Director General from the Assembly to the Oversight Committee, as an anti-deadlock mechanism in case the election procedure for the Director fails at the Assembly, is a solution in accordance with the recommendations of the Venice Commission.

The Court, in its Judgment, namely in the light of elaborating the concept of civil confiscation of unjustified assets based on the international standard and the respective practice of countries that apply civil confiscation, initially emphasizes the importance of the legitimate aim of the contested Law for the public interest and the fight against corruption in the public sector. Having said this, in terms of assessing and examining the applicants’ allegations, as well as the counter-arguments of the interested parties, the Judgment, among others, also elaborates (i) the general principles pertaining to the concept of civil confiscation of unjustified assets according to international practice; (ii) the case-law of the European Court of Human Rights (ECtHR) pertaining to the confiscation of assets and the burden of proof, including in the context of “interference” with the property rights of individuals as a result of confiscation of assets in civil proceedings; (iii) the relevant documents approved at the level of the United Nations, the European Union and the Council of Europe, including all the Opinions of the Venice Commission regarding the civil confiscation of assets, with an emphasis on aspects related to institutional design and corresponding guarantees for committees/agencies responsible for civil confiscation of unjustifiable assets and issues related to the burden of proof and retroactive applicability of the law; and (iv) two (2) Opinions of the Venice Commission on Kosovo regarding the contested Law adopted on 17-18 June 2022 and on 16-17 December 2022, respectively.

In the light of the aforementioned principles, including the arguments and counter-arguments of the parties, for the purposes of this summary, the most essential findings of the Judgment pertaining to three comprehensive categories of issues will be presented hereinafter, namely (i) the scope of the contested Law in terms of the equality before the law, legal certainty and proportionality of the retroactive application of the law in relation to the individual’s burden of proof; (ii) the procedural guarantees in the context of verification and/or confiscation of unjustifiable assets; and (iii) the institutional design issues, namely the mechanisms of oversight of the State Bureau, including the in/compatibility of the constitutional functions of the members of the Oversight Committee.

(i) Scope of the Law – equality before the law, legal certainty and proportionality of the retroactive application of the law in relation to the individual’s burden of proof

The Judgment initially clarifies that in the context of its scope, the contested Law, in principle, applies to the assets acquired in an unjustified manner, throughout the period of exercising the function of public officials from 17 February 2008 and within ten (10) years from the moment when the relevant subjects cease exercising their functions and exceptionally, to the assets acquired after the period of exercising the public function, but not longer than five (5) years after the end of the official person’s public function. According to the clarifications provided, these regulations, in essence, raise three issues at constitutional level, namely (a) the principle of equality before the law among citizens of the Republic of Kosovo in light of the fact that only public officials and third parties related to them are subject to assets verification, including the equality before the law of public officials themselves, considering that subject to verification are only the assets acquired by public officials after 17 February 2008; (b) the principle of legal certainty in the context of the retroactive applicability of the contested Law starting from 17 February 2008, including in relation to the burden of proof which, after the proposal of confiscation of assets by the State Bureau, retroactively, falls upon the individual; and (c) the principle of legal certainty in the context of “clarity” and “foreseeability” of the provisions of the contested Law which regulate the period of verification of unjustifiable assets during the exercise and after the end of office of the relevant officials. The assessments and the findings of the Court pertaining to the above issues will be succinctly presented as follows.

(a) equality before the law between public officials and third parties in relation to other citizens of the Republic regarding the verification of unjustifiable assets, including before and after 17 February 2008

In the context of the (un)equal treatment between public officials and third parties, in relation to other citizens of the Republic with regard to the verification of unjustifiable assets, including before and after 17 February 2008, the Judgment, based on the Court’s case-law and that of the ECtHR, initially clarifies that the aforementioned categories are in “relatively similar and/or analogous situations” and that the contested law treats these categories differently, resulting in “difference in treatment”. Having said that, according to the clarifications provided in the Judgment, this “difference in treatment” does not result in violation of equality before the law because it pursues a “legitimate aim” of public interest and is “proportional” to the aim pursued, among others, because based on the public interest of fighting corruption in the public sector, the contested Law focuses on the category of citizens who were paid from the state budget, namely from the taxpayers of the Republic of Kosovo.

(b) the retroactive application of the law in relation to the burden of proof related to the un/justifiability of the assets

In the context of the retroactive applicability of the contested Law in relation to the principle of legal certainty, the Judgment, based on the ECtHR’s case-law, the Opinions of the Venice Commission related to the civil system of confiscation of unjustified assets and the case-law of the other constitutional courts, clarifies that, in principle, the retroactive application of the law in the field of civil and administrative law is exceptionally possible, as long as it is in the public interest and is proportional to the aim pursued. According to the clarifications given, the retroactive applicability of the contested Law in the context of the verification of unjustifiable assets, is in the public interest of the fight against corruption. The latter makes it necessary to act not only in the future, but also to address the illegal acquisition of assets in the past, especially since, in such circumstances, there is no intervention exclusively in past events, but in the facts in continuation as well because ownership of illegal assets began in the past, but continues further, while the individual’s expectation of being able to keep the assets acquired illegally does not weigh against the public interest in combating corruption.

Having said this and according to the clarifications provided, it remains contested whether the retroactive application of the law for a period longer than fifteen (15) years, namely from 17 February 2008, is proportional to the fundamental rights and freedoms of the subjects of verification in the context of the burden of proof and which, according to the ECtHR’ case-law but also to the Opinions of the Venice Commission, is necessary in the context of the reasonableness and/or “objective possibility” of the individual to obtain and present the necessary evidence in support of the argument that the assets subject to verification and/or confiscation, are justifiable. According to the clarifications given in the Judgment, while in its proposal for the confiscation of assets, the State Bureau is supported by the obligation of cooperation of all public authorities in the Republic of Kosovo, the individual bears the burden of proving the contrary, namely proving the justifiability of the assets, under circumstances which, the contested Law, unlike similar laws in states that have adopted the system of civil confiscation of property, does not contain any guarantee for the individual to prove the “objective impossibility” of possessing a piece of evidence over a period of time which, in principle, exceeds the deadlines prescribed in the applicable laws for keeping/saving data/records and/or access to necessary documentation/evidence.

According to the clarifications provided, in order to assess the proportionality in the context of the period of retroactive applicability of the contested Law and the individual’s burden of proof which is based on the “balance of probabilities”, respectively according to the definition of the law, in the belief that “something is more likely to be, or to have happened than not”, the Judgment, among others, emphasizes the context of the state building of the Republic of Kosovo, including the adoption and characteristics of the applicable laws that are relevant to prove the relationship between the legal income and the acquired assets in the context of (i) the personal income tax system; (ii) pension system; (iii) the legal obligation to circulate money through bank transactions; (iv) declaration of assets; and (v) confiscation of assets acquired through criminal offences. According to the clarifications given, in principle, it results that the applicable laws do not provide for obligations to store/maintain data for the period longer than ten (10) years and which, therefore, exceeds the period of retroactive application of the contested Law. Therefore, and according to the clarifications provided, despite the fact that the contested Law pursues the legitimate aim of public interest, the same, in the Court’s assessment, does not reflect a reasonable balance between the state and the individual, among others, because (i) the period of retroactive applicability of the law , in principle, exceeds the time limits defined in the relevant applicable laws in the context of keeping records and/or data, (ii) in circumstances in which the entire state administration is obliged to cooperate with the State Bureau, while the burden of proof about the justifiability of the contested assets falls on the individual, and (iii) who does not benefit from a reasonable procedural guarantee, based on which, he/she could argue before the competent court the “objective impossibility” to obtain and/or present a piece of evidence in favor of the justifiability of the assets which are subject to verification and/or confiscation.

As a result, the Court held that point 2.1 of paragraph 2 of article 2 (Scope) in conjunction with paragraph 2 of article 34 (Hearing in the first instance) of the contested Law, is not compatible with paragraph 1 of article 7 [Values] of the Constitution and paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of Property) of Protocol no. 1 of the European Convention on Human Rights. According to the clarifications given in this Judgment, in addressing the violations noted above, through amendments and/or supplementation of the aforementioned provisions, the Assembly must ensure that the retroactive application of the law is balanced and/or proportional to the burden of proof, either (i) by determining reasonable retroactive periods based on the analysis and evaluation of the applicable laws in the Republic of Kosovo, including in the context of access to data that are relevant for proving the un/justifiability of assets; and/or (ii) by providing procedural guarantees in the context of the individual’s burden of proof, which would enable the latter to argue before the respective courts in relation to the “objective impossibility” of obtaining the relevant evidence.

(c) the principle of legal certainty in the context of “clarity” and “foreseeability” of the provisions of the contested Law, which regulate the period of verification of immovable property during the exercise and after the end of office of the respective officials

The Judgment emphasizes that, based on the ECtHR’s case-law, the process of verification and/or confiscation of assets constitutes an “interference” with the property rights of the individual and as such, must be prescribed by law and proportional to the aim pursued. In this context, the Judgment also underlines the necessity of “clarity” and “foreseeability” of the legal provisions that may affect the property rights of an individual, including retroactively, as in the circumstances of the concrete case. According to the clarifications provided, the contested Law establishes the possibility of verification and/or confiscation of the assets acquired during the exercise of the function, and exceptionally after the end of office, which in the assessment of the Court, is in the general interest of fighting corruption in the public sector. Having said this, according to the clarifications given, in the context of the period during which the assets can be subject to verification and/or confiscation, the respective provisions of the contested Law, among others, do not clarify in a precise and predictable manner the time periods during which the acquired assets can be subject to verification, including the time periods during which the property verification procedure can be initiated, both in terms of the assets acquired during the exercise of the function and the assets acquired after the end of the relevant office. According to the clarifications provided, the lack of such clarity allows the public authorities, including the State Bureau, to interpret the time limits stipulated in the contested Law, at their full discretion, in violation of the principle of legal certainty and in violation of fundamental rights and freedoms of the individual, including, by making it impossible for them to adequately regulate their respective behavior and expectations.

As a result, the Court held that point 2.2 of paragraph 2 of article 2 (Scope) in conjunction with paragraph 3 of article 22 (Period of asset verification) of the contested Law, are not in compliance with paragraph 1 of article 7 [Values] of the Constitution. According to the clarifications provided in this Judgment, in addressing this violation, the Assembly, through amendments and/or supplementation of the aforementioned provisions, must ensure that the norms that determine the time periods within which the State Bureau can verify the assets acquired during and after the exercise of the function, including those within which investigations and respective proceedings can be initiated, must be completely “clear” and “foreseeable”.

(ii) Procedural guarantees in the context of verification and/or confiscation of unjustifiable assets

The Judgment clarifies that the contested Law, among others, regulates the procedure of verification and confiscation of unjustifiable assets, including the rights and obligations of the parties to the proceedings and the authorizations of the State Bureau, including in the context of (i) initiation of the proceedings; (ii) collecting information for the purpose of verification; (iii) obligation to cooperate; (iv) proceedings before the regular courts; and (v) legal remedies and judicial protection of rights. The Judgment analyzes and clarifies all the above issues in the context of the guarantees deriving from articles 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 36 [Right to Privacy] and 54 [Judicial Protection of Rights] of the Constitution, but also those that derive from the ECtHR’s case-law and the opinions of the Venice Commission, and in principle, finds that the contested Law in conjunction with other applicable laws, contain sufficient procedural guarantees for the parties to the proceedings.

Having said that, taking into account the wording of the provisions of the contested Law, the Judgment emphasizes three primary issues, namely (i) the right to not incriminate oneself; (ii) the right of the party to be notified of all the proceedings conducted in the context of the verification of the assets, including in relation to the imposition of security measures on the disputed assets; and (ii) the principle of legal certainty.

In the context of the first issue, namely the obligation to cooperate in relation to the right to not incriminate oneself, the Judgment, among others, clarifies that the State Bureau is established as an Independent Agency according to the provisions of article 142 [Independent Agencies] of Constitution, based on which, every organ, institution or other entity exercising legal authority in the Republic of Kosovo is bound to cooperate with and respond to their requests during the exercise of their legal competencies, in a manner prescribed by law. Therefore, according to the clarifications given, the obligation in the context of the cooperation of public authorities with the State Bureau as defined by the contested Law, is not disputable. On the other hand, and in the context of the obligation of individuals to cooperate, including the parties to the proceedings, the Judgment, among others, clarifies that the contested Law (i) contains the guarantee based on which, for natural persons, including the subject of verification, the obligation to cooperate extends to the extent that “the right to privacy and the right to not incriminate oneself are not violated” and that the assessment of such a proportion is within the competence of the competent court; moreover, that (ii) the consequence of refusal to cooperate, namely the possibility of criminal report for the criminal offense “failure to execute court decisions”, according to the provisions of the Criminal Code, does not extend to the natural person, but only to public authorities and/or natural and legal persons with public authorizations.

In the context of the second and third issues, namely the obligation to notify the party, including with regard to the imposition of security/interim measures and the principle of legal certainty, the Judgment, among others, emphasizes that (i) the contested Law, in principle, provides sufficient guarantee within the principle of equality of arms and that of adversariality, as it enables the subject of verification, access to the information received and processed, while the limitation to their access can only be determined by the competent court, a decision which can be appealed by the respective subject; (ii) based on the principles stemming from the case-law of the ECtHR, the party must be informed throughout the process, including in the context of the conducted procedures regarding the imposition of security measures on the disputed assets, and that the imposition of a security/interim measure without the prior notification of the party, is possible only exceptionally under the strict guarantees stemming from the case-law of the ECtHR; and (iii) taking into consideration the principle of legal certainty, including the obligation that the applicable norms are “clear” and “foreseeable”, the rights and obligations of the parties to the proceedings must to be prescribed by law and not through sub-legal acts.

The Judgment finally notes that the Court’s assessment that the contested Law, in principle, provides sufficient procedural guarantees for the parties to the proceedings, does not imply the legality and/or constitutionality of the decisions of the State Bureau and/or regular courts. The Judgment refers to article 53 [Interpretation of Human Rights Provisions] of the Constitution, recalling that all public authorities are obliged to interpret fundamental rights and freedoms consistent with the case-law of the ECtHR.

(iii) Oversight of the State Bureau – transfer of oversight from the Assembly to the Oversight Committee and in/compatibility of the constitutional functions of the Committee members

In the context of the institutional design of the State Bureau, the Judgment, among others, focuses on its three main characteristics, namely (a) the status of the State Bureau in the context of the legal order of the Republic of Kosovo, including the fact that the same is established based on article 142 [Independent Agencies] of the Constitution, but that the oversight of exercising its functions has not been left within the power of the Assembly of the Republic of Kosovo, but rather to an Oversight Committee comprised of representatives of institutions and/or independent agencies; (b) the composition of the Oversight Committee, including the compatibility of the constitutional functions of its members in relation to the nature of responsibilities of this Committee and the powers of the State Bureau; and (c) the manner of election of the Director General of the State Bureau.

(a) the oversight competence of the Assembly in relation to the status of State Bureau

In the context of the establishment of the State Bureau as an independent agency, the Judgment emphasizes the constitutional principles which relate to the form of governance and separation of powers, elaborated through the Court’s case-law over the years, highlighting that in the circumstances of the case at hand, the question is related pertaining to the competent authority to exercise oversight over the State Bureau, namely whether providing an Oversight Committee with the oversight competence over the State Bureau, infringes upon the Assembly’s oversight competence with respect to Independent Agencies established based on article 142 [Independent Agencies] of the Constitution. The Judgment notes that the drafts of contested Law were twice subject of review by the Venice Commission, which, among others, noted that the election and dismissal of the Director General of the State Bureau, could benefit from an external expert committee in order to avoid the politicization of his/her election in a committee of the Assembly, also putting forward the alternative of establishing a pluralistic governing body of the State Bureau composed of representatives of independent institutions, whereas in their second opinion, assigning the oversight competence over the State Bureau to an Independent Committee, was considered an “appropriate” solution. That said, as per the explanations provided in the Judgment, the Assembly oversight competence in relation to public institutions is regulated by the Constitution, and in the context of the oversight of the State Bureau, relevant is the interaction between articles 65 [Competencies of the Assembly] and 142 [Independent Agencies] of the Constitution.

In the aforementioned context, the Judgment explains that (i) based on article 142 [Independent Agencies] of the Constitution, Independent Agencies are institutions established by the Assembly based on the respective laws that regulate their establishment, functioning and powers, whereas such provision, not necessarily prescribe the oversight competence of the Assembly in relation to such agencies; whereas (ii) based on article 65 [Competencies of the Assembly] of the Constitution, the Assembly oversees the work of the public institutions that report to the Assembly in accordance with the Constitution and the law. Based on the provided explanations, whilst, in the principle, it is the Assembly that exercises the oversight function over the Independent Agencies, the Assembly, based on the stipulations of paragraph 9 of the aforementioned constitutional article, including based on the Law No.06/L–113 On Organization and Functioning of State Administration and Independent Agencies, is also authorized through respective laws on establishment of Independent Agencies, to delegate/determine such oversight competence to another structure or to an Independent Committee, as is the case in the context of the contested Law. Having said that, as far as the Assembly decides to delegate/determine the oversight competence to another authority, the latter must be in compliance with the constitutional provisions, including those pertaining to the separation and balance of powers. As per explanations provided in the Judgment, which will be summarized hereinafter, the composition of the Oversight Committee of the State Bureau in the context of its competencies, raises constitutional issues that are related to, among others, incompatibility of the constitutional functions of its members.

(b) the composition of the Oversight Committee in the context of the constitutional functions’ incompatibility of its members in relation to the nature of the competencies of the State Bureau

The Judgment recalls that the aforementioned Oversight Committee is comprised of (i) a judge of the Kosovo Supreme Court, nominated by the President of the Supreme Court, who is also the Committee Chair; (ii) the General Auditor of the Republic of Kosovo; (iiii) the Director of the Agency for Prevention of Corruption; (iv) a deputy Ombudsperson assigned by the Ombudsperson; and (v) the Director of the Financial Intelligence Unit. The powers of the Oversight Committee, pursuant to the contested Law, are comprehensive, including but not limited to (i) overseeing the work and all activities of the State Bureau; (ii) proposing the election and dismissal of the Director General, including the competence for his/her election; (iii) the review of reports and evaluation of the Director General’s performance as well as overseeing the implementation of his/her competencies; and (iv) approval of all bylaws.

The Judgment further explains that the Deputy Ombudsperson, the General Auditor and the Judge are constitutional categories, hence, their functions, competencies, including the incompatibility of their functions, are established by the Constitution and applicable laws for each category referred to above. According to the clarifications given in the Judgment, and in the analysis of the constitutional competencies of the Ombudsperson, the General Auditor and the Judge, in relation to the nature of the competences that are assigned to them in the exercise of their functions as members of the Oversight Committee of the State Bureau, including in the context of the principles stemming from the relevant opinions of the Venice Commission and the Consultative Council of the European Judges of the Council of Europe, the Court has assessed that the exercise of competences as members of the State Bureau Oversight Committee, for the Deputy Ombudsperson, the General Auditor and the Supreme Court Judge, is incompatible with their functions and competences as provided for in the respective provisions of the Constitution.

More precisely and pertaining to the Ombudsperson, namely his/her deputy, the Judgment elaborates on the constitutional and legal functions of the Ombudsperson, with an emphasis on the oversight competence this institution has pertaining to the protection of the rights and freedoms of individuals from unlawful or improper actions or failures to act of public authorities, including the State Bureau itself, pursuant to the provisions of article 132 [Role and Competencies of the Ombudsperson] of the Constitution. The Judgment also clarifies the role of the Deputy Ombudsperson within the Ombudsperson Institution, including the fact that based on Law No. 05/L-109 on Ombudsperson, the same may be assigned additional functions. Having said that, the Judgment also emphasizes that the Constitution of the Republic of Kosovo, namely paragraph 3 of article 134 [Qualification, Election and Dismissal of the Ombudsperson], deals specifically and identically with the incompatibility of the functions of the Ombudsperson and his/her deputies, providing, among others, that they cannot exercise any political, state or private professional activity.

According to the clarifications given, the involvement of the Deputy Ombudsperson in the capacity of a member of the State Bureau Oversight Committee, namely his/her decision-making and oversight authority in a state institution that, among others, will be responsible for the verification of unjustified assets and the proposal for their confiscation in civil proceedings, which, including as per the case-law of the ECtHR, raises fundamental constitutional issues in terms of the necessary balance between the public interest and fundamental rights and freedoms, raises serious issues of compatibility with the Ombudsperson’s constitutional mandate to oversee and protect the rights and freedoms of individuals from unlawful and improper actions or failures to act of public authorities, including the State Bureau itself. In fact, the exercise of the oversight competence by the Ombudsperson according to the provisions of article 132 [Role and Competencies of the Ombudsperson] of the Constitution, would involve a public authority, in the decision-making of which, the Ombudsperson, namely his/her deputy has participated him/herself.

Consequently and taking into account (i) the oversight competence of the Ombudsperson in relation to all public authorities in the context of fundamental rights and freedoms; and (ii) the nature of the competences of the State Bureau Oversight Committee members, in the assessment of the Court, the participation of the Deputy Ombudsperson in the Oversight Committee, with comprehensive decision-making competences in relation to the State Bureau, would infringe the constitutional independence of the Ombudsperson in overseeing the State Bureau in the context of its specific constitutional competence pertaining to the protection of the rights and freedoms of individuals from unlawful and improper actions or failures to act of public authorities.

Furthermore, in the context of the General Auditor of the Republic of Kosovo, the Judgment elaborates the constitutional and legal functions of the Auditor-General, as the highest institution of economic and financial control, based on article 136 [Auditor-General of Kosovo] of the Constitution, as well as the competence to audit the economic activity of public institutions and the use and safeguarding of public funds by central and local authorities, as stipulated by article 137 [Competencies of the Auditor-General of Kosovo] of the Constitution. As explained, the competence of the Auditor-General to audit the activity of public authorities and the use of public funds by them, does not depend on a legal provision nor the composition of the decision-making bodies, since it is a matter that is regulated at the level of the Constitution and which, applies to all public authorities in the Republic of Kosovo, without exception, consequently including the State Bureau itself.
In this context, the Judgment emphasizes that the decision-making of the Auditor-General in the capacity of the member of the Oversight Committee with respect to the budget related issues of the State Bureau, would infringe the constitutional competence of the Auditor-General to audit the economic activity of the State Bureau, as stipulated by article 137 [Competencies of the Auditor-General of Kosovo] of the Constitution. The Judgment recalls that it is precisely the role of the Auditor-General as the highest institution of economic and financial control in the Republic of Kosovo, which has also resulted in the specified provisions of the applicable law on the Auditor-General, and according to which, the Auditor-General and its employees, cannot exercise any other function at any level of the public sector.

Consequently and taking into account (i) the oversight competence of the Auditor-General in relation to all public authorities in the context of economic and financial control; and (ii) the nature of the competences of the members of the State Bureau Oversight Committee, including the fact that they also evaluate the performance of the Director General, review of his/her work reports, including in the context of the management of the Bureau’s budget, in the Court’s assessment, the participation of the Auditor-General in the Oversight Committee, with comprehensive decision-making competences, including in the context of financial management, would infringe the constitutional independence of the Auditor-General in overseeing the State Bureau in the context of the management and use of public funds as provided for by articles 136 [Auditor-General of Kosovo] and 137 [Competencies of the Auditor-General of Kosovo] of the Constitution.

In the end and pertaining to the Supreme Court Judge, in the capacity of the Oversight Committee Chair of the State Bureau, the Judgment recalls the principles stemming from the Constitution in the context of the separation and balance of powers, as elaborated through its case-law over the years, including the incompatibility of the functions of judges with other state functions. For the purposes of this analysis, the Judgment elaborates, among others, (i) the international principles and standards related to the independence and impartiality of the function of the judge and the incompatibility of the exercise of other functions outside the judicial system, including the Bangalore Principles adopted at the level of the United Nations, the Recommendations of the Committee of Ministers of the Council of Europe, the opinions of the Consultative Council of European Judges and the relevant Opinions of the Venice Commission; (ii) the comparative analysis of the Constitutions in the context of regulating the incompatibility of the function of a judge with other state functions; and (iii) the case-law of other Constitutional Courts related to the interpretation of the incompatibility of a judge’s function.

The Judgment, among others, emphasizes that the Constitution of the Republic stipulates the exercise of additional state functions for the judges of the Republic of Kosovo, in two cases, namely the functions (i) in the Kosovo Judicial Council; and (ii) the Central Election Commission. In all other cases, in its article 106 [Incompatibility], the Constitution specifies that (i) a judge may not perform any function in any state institution outside of the judiciary, be involved in any political activity, or be involved in any other activity prohibited by law; and (ii) judges are not permitted to assume any responsibilities or take on any functions that would in any way be inconsistent with the principles of independence and impartiality of the role of a judge. According to the clarifications provided, while the aforementioned provisions provide for the possibility of additional functions for the judges of the Republic of Kosovo as regulated by specific laws and/or procedures defined by the Kosovo Judicial Council, the Constitution clearly entails a prohibition for the judges to exercise any function in state institutions “outside the judiciary”. According to the clarifications given in the Judgment, such a wording in the Constitution includes the obligation to assess the compatibility of the function of the judge with the function of chairing the Oversight Committee of an independent agency, namely the State Bureau, including in the context of the competences of this Committee and the fact, namely the determination on whether the State Bureau can be considered a state institution within the judiciary for purposes of compatibility of functions.

According to the provided clarifications, and taking into account, (i) the institutional nature of the State Bureau and the Bureau’s relationship with the courts, namely the judicial branch; and (ii) the nature of comprehensive powers exercised by the chairperson of the Bureau’s Oversight Committee, namely the judge of the Supreme Court; (iii) the fact that the State Bureau cannot qualify as a state institution within the judiciary for the purposes of the formulation of article 106 [Incompatibility] of the Constitution, because the relationship between the State Bureau and the judicial branch, according to the contested Law, is of an oversight nature, namely, the decision-making of the Bureau in the context of verification and the proposal for the confiscation of assets is always subject to the control and decision-making of the courts, in the assessment of the Court, the function of the judge of the Republic of Kosovo is not compatible with the competence of chairing the Oversight Committee of the State Bureau based on the provisions of article 106 [Incompatibility] of the Constitution.

According to the clarifications given in this Judgment, in addressing the above aspects, the Assembly, through amendments and/or supplementations of the aforementioned provisions, to the extent that it chooses not to exercise its own oversight function over the State Bureau, it must establish the composition of the Oversight Committee of the State Bureau, in such a way so that all the necessary guarantees for the independence of this institution are respected, while at the same time the constitutional provisions pertaining to the incompatibility of the functions and/or oversight competences of the constitutionally independent institutions, are equally respected.

(c) the manner of election of the Director General of the State Bureau

The Judgment also elaborates the manner of election of the General Director of the State Bureau, and who, according to the provisions of the contested Law, is elected by the Assembly, with the majority of votes of all deputies present and voting, however, if the Assembly fails to elect the Director in two rounds of voting, after two competitions/public announcements, the competence to elect the General Director passes to the Oversight Committee. Such a regulation, according to the provided explanations, in principle, raises two contentious issues, namely (i) the election of the Director General by the Assembly only with a simple majority; and (ii) the anti-deadlock mechanism for the transfer of this competence to the Oversight Committee, in case of failure of election in the Assembly.

According to the clarifications provided in the Judgment, the election of the Director General with the majority of votes of all the deputies present and voting in the Assembly, is not contrary to the provisions of articles 65 [Competencies of the Assembly] and 80 [Approval of Laws] of Constitution. Having said this and taking into account the importance of the function of the Director General of the State Bureau, including his/her seven (7) year term of office, the Judgment also recalls the continuous recommendation of the Venice Commission in its opinions on Kosovo, but also in other relevant opinions in the context of the election of the leading structures of the responsible agencies/committees for the civil confiscation of assets, that the election of the Director General should be by a majority of two thirds (2/3) of the deputies. On the other hand, and with regard to the adopted anti-deadlock mechanism, namely the transfer of the competence of election of the Director General to the Oversight Committee, the Judgment clarifies that the manner of election of the holders/members of the Independent Agencies is not specified by constitutional provisions and as a result, the establishment of the manner of election of the Director General of the State Bureau, based on paragraph 1 of article 142 [Independent Agencies] of the Constitution, is a competence of the Assembly, also recalling that insofar as the constitutional norms have not been infringed, the evaluation of the selected public policy that has led to the adoption of a certain law/provision, is not within the competence of the Court.

In the end, the Judgment clarifies that the applicants’ referral was submitted to the Court pursuant to paragraph 5 of article 113 [Jurisdiction and Authorized Parties] of the Constitution and that this category of referrals has a suspensive character, respectively such law can be sent to the President of the Republic of Kosovo for promulgation only after the decision-making of the Court and in accordance with the modalities established in the final decision of the Court. Having said this, and despite the fact that in reviewing the constitutionality of the contested Law, the Court has found as contrary to the Constitution only specific parts of four (4) articles of the contested Law, namely its articles 2 (Scope), 10 (Composition of Oversight Committee and Compensation), 22 (Period of asset verification) and 34 (Procedure in the first instance), taking into account their nature and importance and the fact that without amending and supplementing the same by the Assembly, the contested Law is unenforceable, based on the case-law of the Court, the contested Law, in the service of the principle of legal certainty, has been declared null and void, in its entirety.