Constitutional Court

KO171/18, Applicant: The Ombudsperson , Constitutional review of articles 2, 3 (paragraph 1, subparagraphs 2, 3 and 4), 4 (paragraph 1), 6, 7 (paragraph 1, subparagraphs 2, 3 and 4), 11 (paragraph 3), 18, 19 (paragraphs 5, 6, 7 and 8), 20 (paragraph 5), 21, 22, 23, 24 and 25 (paragraphs 2 and 3) of Law No. 06/L-048 on Independent Oversight Board for Civil Service in Kosovo

 KO171/18, Judgment of 25 April 2019, published on 20 May 2019

Keywords: institutional referral, Independent Oversight Board for Civil Service of Kosovo,

 The Referral was submitted by the Ombudsperson, in the capacity of the authorized party pursuant to paragraph 2, subparagraph 1, of Article 113 [Jurisdiction and Authorized Parties] of the Constitution.

The Applicant requested the Constitutional Court to assess the constitutionality of certain provisions of Law No. 06/L-048 on Independent Oversight Board for Civil Service in Kosovo (hereinafter: the challenged Law) and requested the imposition of interim measure.

In his Referral addressed to the Constitutional Court, the Applicant alleged that the challenged Law is not in compliance with Article 132 [Role and Competencies of the Ombudsperson] and Chapter VI [Government of the Republic of Kosovo] of the Constitution.
The Applicant’s main allegations were about: (i) exceeding the narrow scope of the Board, as defined in Chapter VI of the Constitution; (ii) the violation of the constitutional independence of the Ombudsperson and other independent constitutional institutions; and (iii) granting immunity to the members of the Board.

The Court found that the Referral fulfills the admissibility requirements established in the Constitution and further specified in the Law and foresees in the Rules of Procedure, and in the merits of the Judgment addressed each allegation of the Applicant. The Court assessed and found the following:
Firstly, as regards the Applicant’s allegation of exceeding the narrow scope of the Board, the Court considered that the term “Civil Service” according to the reading and interpretation of Article 101 of the Constitution should be understood in its context and the purpose of the drafter, which is stated in Article 1 of the Law on Civil Service, thus avoiding the possibility of misinterpretations or technical interpretations of the norm in question. Consequently, the Court found that Article 2 of the challenged Law is in compliance with Article 101 [Civil Service], paragraphs 1 and 2 of the Constitution.
Secondly, as regards the second set of allegations, the Court initially recalled its case law in which it developed the principles regarding the independence of the constitutionally independent institutions, emphasizing that the latter are not exempted from the obligation that in the regulations or legal acts regulate the specifics regarding the employment relationship that differ from the general norms established by other laws, including the challenged Law; and during the implementation of the challenged Law, their function should be recognized, inter alia, in the issuance and application of their internal rules to protect their independence established in the Constitution and specific laws, to the extent necessary, to protect their independence.
Whereas, as regards the constitutional review of the provisions of the challenged Law in relation to other public institutions, the Court concluded that Article 4 (paragraph 1) in conjunction with Article 3 (paragraph 1.1) governing the status of the Board, are not in compliance with the Constitution because the Court held that the Board cannot be categorized by the status of an independent constitutional institution under Chapter XII of the Constitution.
Regarding the constitutional review of Article 6 (paragraph 1.2) and Article 19 (sub-paragraphs 5, 6, 7 and 8) of the challenged Law, these articles regulated the oversight of the selection of civil servants for senior management positions by the Board, the Court found that they are not in compliance with the Constitution. The Court considered that the unequal treatment of civil servants in relation to the competence of the Board for overseeing the selection of civil servants as foreseen by these provisions of the challenged Law, are not in compliance with the constitutional right to equality before the law.
The Court found that the following provisions of the challenged Law, namely Article 2 on the scope; Article 3 (paragraphs 1.2, 1.3, 1.4) for the definitions “civil servant”, “civil servant of high management level”, “civil servant of management level”; Article 7 (paragraph 1, subparagraphs 2, 3 and 4) for the competencies of the Board; Article 11, paragraph 3 on immunities; Article 18 on the ways of filing appeals; Article 20 (paragraph 5) for the implementation of the Board recommendations; Article 21 on Board decisions; Article 22 for initiating administrative conflict; Article 23 on procedures in case of non-implementation of the Board decision; Article 24 on administrative sanctions; and Article 25 (paragraphs 2 and 3) regarding the cooperation of the institutions of the challenged Law, are in compliance with the Constitution.
Thirdly, the Court, having regard to the limited immunity guaranteed by the challenged Law to the Board members, considered that the measure used was proportionate and found that Article 11, paragraph 3 of the challenged Law is compatible with the right of access to court, as an integral part of the right to fair and impartial trial guaranteed by Article 31 of the Constitution and Article 6 of the ECHR.
Finally, regarding the imposition of the interim measure, the Court considered that it was not necessary to consider it since it was decided on the merits of the case.