Constitutional Court

Cases (i) KO232/23, applicant: Abelard Tahiri and 10 (ten) other deputies of the Assembly of the Republic of Kosovo; and (ii) KO233/23, applicant: Besian Mustafa and 10 (ten) other deputies of the Assembly of the Republic of Kosovo, Constitutional review of the Law No. 08/L-180 on amending and supplementing the Law No. 06/L-048 on Independent Oversight Board for Civil Service of Kosovo

KO232/23 and KO233/23, Judgement of 21 June 2024, published on 24 July 2024

Key words: institutional referral, admissible referral, the right to legal remedies, civil servants in senior management positions, competencies of Independent Oversight Board for Civil Service of Kosovo, immunity of the members of the Independent Oversight Board, “enforceability” of decisions of the Independent Oversight Board

The Constitutional Court of the Republic of Kosovo has decided on the joint referrals in cases (i) KO232/23, with applicants: Abelard Tahiri and ten (10) other deputies; and (ii) KO233/23, with applicants: Besian Mustafa and ten (10) other deputies of the Assembly of the Republic of Kosovo, submitted to the Court based on the authorizations established in 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-180 on Amending and Supplementing Law no. 06/L-048 on Independent Oversight Board for the Civil Service of Kosovo.

The Court decided to (i) unanimously declare the referral admissible; and to hold (ii) unanimously, that articles 2, 7 and 8 of the contested Law, are not in compliance with paragraph 1 of article 24 [Equality Before the Law] and article 32 [Right to Legal Remedies] in conjunction with paragraph 2 of article 101 [Civil Service] of the Constitution and to declare these articles invalid; (iii) with seven (7) votes in favor and two (2) votes against, that article 6 of the contested Law, is not in compliance with paragraph 2 of article 101 [Civil Service] of the Constitution and to declare this article invalid; (iv) unanimously, that articles 9, 10 and 11 of the contested Law, are not in compliance with paragraph 1 of article 31 [Right to Fair and Impartial Trial] of the Constitution and to declare these articles invalid; and (v) unanimously, to declare that, based on article 43 (Deadline) of Law no. 03/L-121 on the Constitutional Court of the Republic of Kosovo, the Law no. 08/L-180 on Amending and Supplementing Law no. 06/L-048 on Independent Oversight Board for the Civil Service of Kosovo be sent to the President of the Republic of Kosovo for promulgation according to the modalities defined in the Court’s Judgment and without articles 2, 6, 7, 8, 9, 10 and 11 of the contested Law.

The Judgment initially clarifies that the contested Law amends and supplements the Law no. 06/L-048 on Independent Oversight Board for the Civil Service of Kosovo, in four main aspects. First, it changes the composition of the Independent Oversight Board from seven (7) to fifteen (15) members, also changing and/or supplementing aspects related to the criteria for appointing members of the Independent Oversight Board and the procedure for their appointment. Secondly, it removes the current legal provision that guarantees decision-making immunity for the members of the Independent Oversight Board. Thirdly, it takes away from the Independent Oversight Board the competence to decide on the complaints of civil servants and/or candidates for civil servants in senior management positions against the Government’s decisions, namely it makes impossible the submission of complaints to the Independent Oversight Board against the decisions of Government for the abovementioned categories, guaranteeing nevertheless the right of appeal to the competent court in administrative conflict. Fourthly, unlike the law in force on the Independent Oversight Board, the enforceability of the Independent Oversight Board’s decisions is conditioned either on the lack of an appeal with the competent court or, in case of an appeal, on the issuance of a final court decision by the competent court.

The applicant deputies of the Assembly contest the aforementioned Law, both in terms of the procedure followed for its adoption, as well as in terms of its content. According to the clarifications given in the Judgment, (i) in the context of the former, the applicants, in essence, claim that the procedure followed for the adoption of the contested Law is contrary to article 77 (Reading of a draft law amending and supplementing a law) of the Rules of Procedure of the Assembly; while (ii) in the context of the second, in essence, they claim that the contested Law is contrary to articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 53 [Interpretation of Human Rights Provisions], 55 [Limitations on Fundamental Rights and Freedoms], 101 [Civil Service] and 142 [Independent Agencies] of the Constitution, among others and essentially, because (i) it violates the fundamental rights and freedoms of civil servants in senior management level by making it impossible for them to complain to the Independent Oversight Board unlike other categories of civil servants, consequently denying them the right to a legal remedy, moreover, taking away at the same time, from the Independent Oversight Board the constitutional competence to ensure the compliance with the rules and principles that regulate the civil service according to the provisions of article 101 [Civil Service] of the Constitution; (ii) violates the decision-making independence of the members of the Independent Oversight Board, by removing the guarantees for immunity in decision-making contrary to article 101 [Civil Service] of the Constitution; as well as (iii) violates the constitutional competencies of the Independent Oversight Board, including the rights of the parties to fair and impartial trial, taking into account that the “enforceable” effect of decisions of the Independent Oversight Board, is eliminated until such time that there is a final decision of the regular courts.

The allegations of the applicants, in principle, are supported by the Ombudsperson and the Independent Oversight Board, while they are counter-argued by the Prime Minister of the Republic of Kosovo and the Parliamentary Group of VETËVENDOSJE! Movement. The latter counter-argue that the contested Law is in accordance with the Constitution, in essence, because (i) the Independent Oversight Board is not an Independent Agency of the Assembly, and that the source of the Board’s competencies is the Assembly; (ii) the Independent Oversight Board cannot limit the competencies of the Government of the Republic of Kosovo and that its decision-making cannot be limited under any circumstances by “a quasi-judicial body”; (iii) a distinction must be made between the categories of the civil service based on their weight of responsibility, competences and the general role in ensuring the functioning of the administration, while the Independent Oversight Board cannot supersede the Government’s decision-making regarding civil servants and/or candidates for civil servants in senior management positions, and whose right to a legal remedy is not violated, because they are guaranteed a legal remedy before the regular courts through the administrative conflict procedure; (iv) it is within the competence of the Assembly whether it considers it necessary to guarantee decision-making immunity for the Independent Oversight Board members or not; and (v) the decisions of the Independent Oversight Board can become “enforceable” only after the decision-making of the regular courts because the decisions of the Independent Oversight Board cannot supersede those of the Government.

In assessing the constitutionality of the contested Law, the Court initially and among others, elaborates (i) the basic constitutional principles regarding the Independent Oversight Board and its relationship with the executive branch as specified in Chapter VI [Government of the Republic of Kosovo] of the Constitution; (ii) the basic constitutional principles related to equality before the law and the right to an effective legal remedy; and (iii) the principles established by the Court, through its already consolidated case-law related to the functioning and competencies of the Independent Oversight Board that derive from article 101 [Civil Service] of the Constitution, including the decision-making independence of its members, with emphasis but not limited to Court’s Judgments in cases (a) KO171/18 regarding the constitutional review of Law no. 06/L-048 on Independent Oversight Board for the Civil Service of Kosovo; (b) KO127/21 regarding the constitutional review of the Decision [no. 08-V-29] of the Assembly of the Republic of Kosovo of 30 June 2021 for the dismissal of five (5) members of the Independent Board; and (c) KO216/22 and KO220/22 regarding the constitutional review of Law no. 08/L-197 on Public Officials.

In applying the aforementioned principles in assessing the constitutionality of the contested Law, the Judgment initially emphasizes that (i) article 101 [Civil Service] of the Constitution establishes an Independent Oversight Board for the civil service with the constitutional competence to ensure compliance with the rules and principles that regulate the civil service in the Republic of Kosovo; (ii) the case-law of the Court, over the years, has clarified the difference between the Independent Oversight Board and Independent Agencies established based on article 142 [Independent Agencies] of the Constitution, emphasizing, in principle, that while the establishment, including the functioning and the competences of the Independent Agencies, is within the competence of the Assembly, the Independent Oversight Board is a body established by the Constitution and the constitutional powers of the latter cannot be violated through the laws of the Assembly; and (iii) while the Assembly has the full competence to specify through laws the role of the Independent Board in the exercise of its function to ensure compliance with the rules and principles that regulate the civil service, the Assembly must respect the independence and competence of the Board according to the constitutional provisions.

In the Court’s Judgment, the principles explained above were applied in the review of each assessed article of the contested Law separately. Having said that, and for the purposes of this summary, the main findings and conclusions regarding the most contested issues of the contested Law will be clarified below, namely pertaining to (i) the exclusion of the competence of the Independent Oversight Board to review the Government’s decisions regarding candidates for and civil servants in senior management positions, as well as the inability of the abovementioned categories to address their complaints to the Independent Oversight Board; (ii) removing the immunity for decision-making of the members of the Independent Oversight Board; and (iii) taking away the “enforceable” nature from decisions of the Independent Oversight Board until a final decision of the regular courts is rendered.

(i) the exclusion of the decision-making competence of the Independent Oversight Board related to the Government’s decisions regarding candidates for admission to and civil servants in senior management positions

The Judgment initially clarifies that articles 2, 7 and 8 of the contested Law, amend and supplement articles 6 (Functions of the Board), 16 (Review of the Complaints) and 19 (Oversight procedure for the selection of senior management and management level Civil Servants) of the basic Law, repealing the competence of the Independent Oversight Board for (i) reviewing complaints against the Government’s decisions for the selection of civil servants in senior management positions; as well as (ii) the supervision of the selection procedure of civil servants in senior management positions. According to the clarifications given in the Judgment, the aforementioned articles raise two constitutional issues, namely (i) the constitutional competence of the Independent Oversight Board to ensure compliance with the rules and principles that regulate the civil service in the Republic of Kosovo; and (ii) equality before the law regarding the right to a legal remedy in the context of candidates for admission to and civil servants in senior management positions compared to other categories of civil service.

In the context of the first issue, the Judgment places emphasis on its consolidated case-law, including in (i) its Judgment in case KO171/18, whereby it elaborated the competence of the Independent Oversight Board for ensuring compliance with civil service rules regarding all categories of civil servants, without exception; and (ii) its Judgment in case KO216/22 and KO220/22, in which the constitutionality of the Law on Public Officials was reviewed, and which, in defining the civil service, also includes the officials, namely the civil servants of senior management level and moreover, in elaborating the right to appeal to the Independent Oversight Board, does not distinguish between the categories of civil servants, specifying/granting to all the categories of civil service the right to a legal remedy to the Independent Oversight Board for any action or failure to act of the authorities, which violates the rights or legal interests stemming from the employment relationship in the civil service. According to the clarifications given in the Judgment, the Constitution determines the competence of the Oversight Board to ensure compliance with the rules and principles that regulate the civil service, and such competence applies to all categories which, based on the applicable laws, fall within the scope of the civil service. Moreover, the Independent Oversight Board is an institution established in the constitutional chapter of the Government of the Republic of Kosovo, and the contested Law excludes the decision-making competence of the Independent Board only in relation to the Government’s decisions.

Furthermore and, in the context of the second issue, the Judgment, applying the principles originating from the case-law of the Court, including the one of the European Court of Human Rights, regarding equality before the law and the right to legal remedy, among others, clarifies that based on the applicable laws, candidates for and the civil servants of senior management category, fall under the definition of civil service and as such, are in “relatively similar and/or analogous” positions with other categories of civil service. Consequently, the differences established in the contested Law in the context of equality of access to legal remedies, namely access to the assessment and decision-making of the Independent Oversight Board, results into a “difference in treatment”, and which, while it is “prescribed by law ” and may pursue a “legitimate aim”, is not proportionate to the aim pursued, among others, because despite the constitutional competence of the Independent Oversight Board to ensure compliance with civil service rules, and unlike all other applicable laws, including the Law on Public Officials, excludes from the supervision of the Independent Oversight Board, only the aforementioned category and that only in relation to the decision-making of the Government of the Republic of Kosovo.

As a result and according to the details given in the Judgment, the Court held that articles 2, 7 and 8 of the contested Law are not in compliance with paragraph 1 of article 24 [Equality Before the Law] and article 32 [Right to Legal Remedies] in conjunction with paragraph 2 of article 101 [Civil Service] of the Constitution.

(ii) removing the immunity for decision-making of the members of the Independent Oversight Board

The Judgment initially clarifies that article 6 of the contested Law removes in its entirety paragraph 3 of article 11 (Term of office for members of Board) of the basic Law, which determines that the President and members of the Independent Oversight Board enjoy immunity from criminal prosecution, civil lawsuits or dismissal regarding the decision-making within the framework of constitutional and legal functions of the Board.

In the aforementioned context, the Judgment emphasizes the fact that the decision-making independence of the members of the Independent Oversight Board has been specifically examined through two Court’s Judgments, in cases KO171/18 and KO127/21, respectively. Through (i) the first Judgment, the Court has assessed precisely the constitutionality of paragraph 3 of article 11 (Term of office for members of Board) of the basic Law, which is being repealed by the contested Law, qualifying it as in compliance with article 101 [Civil Service] of the Constitution; while through (ii) the second Judgment, the Court declared contrary to the Constitution the dismissal of the members of the Independent Oversight Board due to their decision-making in concrete cases. Through these two Judgments, the Court, among others, has emphasized that (i) the constitutional independence of the Independent Oversight Board is conditioned by the decision-making independence of its members; (ii) the constitutional independence of the Independent Oversight Board in the exercise of the functions established by the Constitution and the law, attributes decision-making immunity to the members of the Board within its constitutional and legal functions, from criminal prosecution, civil lawsuits or dismissal, which enables them to be free to exercise their functions independently and without fear of consequences for the performance of their functions in relation to “the views expressed, the way of voting or the decisions taken during their work”; (iii) despite the fact that the Assembly has the constitutional competence to supervise the Independent Oversight Board according to the provisions set forth in the law approved by the Assembly itself, including the possibility of dismissing its members in the circumstances specified in the applicable law on the Independent Oversight Board, the members of the Board cannot be dismissed for decision-making. According to the clarifications given in the Judgment, such a possibility, based on which the members of the Independent Oversight Board could be dismissed for their decision-making, would deeply infringe upon the functional independence of the Independent Oversight Board and the very purpose of its existence, according to the provisions of article 101 [Civil Service] of the Constitution and applicable laws. Furthermore, the Judgment reiterates the fact that the legality of the decisions of the Independent Oversight Board is subject to the control of the judicial branch and not the legislative and/or executive branches of government.

As a result and according to the details given in the Judgment, the Court held that article 6 of the contested Law is not in compliance with paragraph 2 of article 101 [Civil Service] of the Constitution.

(iii) taking away “enforceability” from decisions of the Independent Board until the final decision of the regular courts

The Judgment first clarifies that articles 9, 10 and 11 of the contested Law, amend and supplement articles 21 (Board’s decision), 22 (Initiation of the administration conflict) and 23 (Procedure in case of non-implementation of the Board decision) of the basic Law, determining that the decisions of the Independent Oversight Board are not “enforceable”, consequently determining that they become “enforceable” (i) only after the expiry of the deadlines for appeal before the regular courts; or (ii) in case of an appeal, only after the decision of the regular courts has become final.

In the aforementioned context, the Judgment elaborates the Court’s consolidated case-law, including in the context of individual referrals and which have raised, in essence, the importance of the “enforceability” of the decisions of the Independent Oversight Board, including in the context of the constitutional guarantees for fair and impartial trial and the effectiveness of the legal remedy. Based on this case-law, the Court in a continuous and consistent manner, has clarified that the decisions of the Independent Oversight Board, which has the characteristics of a “quasi-tribunal” in the context of the obligations stemming from article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with article 6 (Right to a fair trial) of the European Convention on Human Rights, are “final, binding and enforceable” decisions in administrative proceedings. The Judgment further reiterates that the Independent Oversight Board has full jurisdiction to decide on matters related to ensuring compliance with civil service rules, while the review/assessment of the legality of these decisions, is subject to the regular courts and which, based on the applicable law for administrative conflicts, have full competence to suspend the enforcement of the Board’s decisions through the imposition of interim measures, when, based on their assessment, the criteria defined by law have been met. According to the clarifications provided, taking away the “enforceability”, from all decisions of the Independent Oversight Board, insofar as the courts have not suspended their execution according to the provisions of the applicable laws, undermines the effectiveness of the constitutional competence of the Independent Oversight Board to ensure the compliance with the rules and principles that regulate the civil service of the Republic of Kosovo in accordance with the provisions of article 101 [Civil Service] of the Constitution.

As a result and according to the details given in the Judgment, the Court held that articles 9, 10 and 11 of the contested Law are not in compliance with paragraph 1 of article 31 [Right to Fair and Impartial Trial] of the Constitution.

In the end, the Judgment clarifies that based on the applicants’ allegations, it results that (i) the procedure followed for the adoption of the contested Law, has not been argued to be in contradiction with the Constitution; and (ii) articles 3, 4 and 5 of the contested Law and which amend and supplement articles 8 (Composition of the Board), 9 (Criteria for the Appointment of the Board’s members) and 10 (Appointment procedures of the members of the Board) of the basic Law, have not been argued to be in contradiction with the Constitution.

The Judgment also clarifies that the referrals of the applicants have been submitted to the Court based on paragraph 5 of article 113 [Jurisdiction and Authorized Parties] of the Constitution and that this category of referrals has a suspensive character, namely such a law can be sent to the President of the Republic of Kosovo for promulgation only after the decision of the Court and in accordance with the modalities defined in the final decision of the Court. In the context of its case-law, as elaborated in the Judgment, taking into account that the remaining provisions of the contested Law can be implemented without the provisions that have been declared in contradiction with the Constitution, the Court decided that the Law no. 08/L-180 on Amending and Supplementing Law no. 06/L-048 on Independent Oversight Board for the Civil Service of Kosovo, be sent to the President of the Republic of Kosovo for promulgation, without articles 2, 6, 7, 8, 9, 10 and 11, which have been assessed to be in contradiction with the Constitution and as such, have been declared invalid.