Judgment

Constitutional review of articles 9, 12, 46 and 99 of Law No. 08/L-197 on Public Officials

Case No. KO216/22 and KO220/22

Applicant: KO216/22, applicant: Isak Shabani and 10 (ten) other deputies of the Assembly of the Republic of Kosovo, and KO220/16, applicant Arben Gashi and 9 (nine) other deputies of the Assembly of the Republic of Kosovo

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Cases KO216/22, applicant: Isak Shabani and 10 (ten) other deputies of the Assembly of the Republic of Kosovo, and KO220/16, applicant Arben Gashi and 9 (nine) other deputies of the Assembly of the Republic of Kosovo, Constitutional review of articles 9, 12, 46 and 99 of Law No. 08/L-197 on Public Officials

Key words: procedure for the adoption of the law, separation of powers, suitability, shortening of the mandate defined by law, the right to legal remedies

KO216/22 and KO220/22, Judgment of 2 August 2023, published on 19 September 2023

The Constitutional Court of the Republic of Kosovo has decided on the joint referrals, in case KO 216/22, with Applicants: Isak Shabani and ten (10) other deputies and KO 220/22, with Applicants: Arben Gashi and nine (9) other deputies of the Assembly of the Republic of Kosovo, submitted to the Constitutional Court based on the provisions of paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo regarding the constitutional review of Articles 9 (General requirements for admission of public officials), 12 (Government of the Republic of Kosovo), 46 (Appointment and mandate of lower and middle management positions) and 99 (Transitional provisions) of Law No. 08/L-197 on Public Officials.

The Court, (i) unanimously decided to declare the Referrals admissible; and (ii) with seven (7) votes for and one (1) against, to hold that the procedure followed for the adoption of the Contested Law is not in violation of Article 77 [Committees] and 78 [Committee on Rights and Interests of Communities] of the Constitution of the Republic of Kosovo. Whereas, concerning the content of the Contested Law, the Court unanimously held that (i) the requirement of “suitability ” stipulated in paragraphs 2 and 5 of Article 9 (General requirements for admission of public officials) of the Contested Law is not in compliance with paragraph 1 of Article 3 [Equality before the Law ] and paragraph 1 of Article 7 [Values] of the Constitution; (ii) the wording “as well as supervise their implementation” of item 1.1 of paragraph 1 and paragraph 2 of Article 12 (Government of the Republic of Kosovo) and sub-paragraphs 1.1, 1.2, 1.5 and 1.9 of paragraph 1 and paragraphs 3, 4 and 5 of Article 13 (Ministry responsible for public administration) of the Contested Law are not in compliance with paragraph 1 of Article 4 [Form of Government and Separation of Power] and paragraph 2 of Article 101 [Civil Service] of the Constitution; (iii) the wording “according to this Law” of paragraph 3 of Article 27 (The right to information about the employment relationship and the right to appeal) of the Contested Law is not in compliance with Articles 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution; (iv) paragraph 6 of Article 27 (The right to information about the employment relationship and the right to appeal) and paragraphs 3 and 4 of Article 88 (The right to appeal of a public service employee) of the Contested Law are not in compliance with paragraph 1 of Article 4 [Form of Government and Separation of Power], Article 32 [Right to Legal Remedies] and Article 54 [Judicial Protection of Rights] of the Constitution; (v) paragraph 6 of Article 67 (Waiting list) of the Contested Law is not in compliance with paragraph 1 of Article 3 [Equality before the Law] and paragraph 1 of Article 7 [Values] of the Constitution; (vi) paragraphs 1, 2, 3, 4, 5, 6 and 7 of Article 99 (Transitional provisions) of the Contested Law are not in compliance with paragraphs 1 and 2 of Article 46 [Protection of Property] of the Constitution in conjunction with paragraph 1 of Article 1 (Protection of Property) of Protocol No. 1 of the European Convention on Human Rights; (vii) paragraph 2 of Article 104 (Repeal) of the Contested Law is not in compliance with paragraph 1 of Article 3 [Equality before the Law], paragraph 1 of Article 4 [Form of Government and Separation of Power] and paragraph 1 of Article 7 [Values] of the Constitution; whereas (viii) with seven (7) votes for and one (1) against, it held that Article 46 (Appointment and mandate of lower and middle management positions) of the Contested Law is not contrary to paragraph 2 of Article 19 [Applicability of International Law] and Article 101 [Civil Service] of the Constitution.

Based on the aforementioned conclusions, the Court also decided (i) to declare that pursuant to Article 43 (Deadlines) of the Law on the Constitutional Court, the Contested Law is sent to the President of the Republic of Kosovo for promulgation without the provisions declared as being in violation of the Constitution, and in accordance with the specifications set forth in the Judgment of the Court; (ii) in accordance with paragraph 1 of Article 116 [Legal Effect of Decisions] of the Constitution, to order the Assembly of the Republic of Kosovo to take the necessary actions for supplementation and amendment of: (a) paragraph 6 of Article 67 (Waiting list); (b) paragraph 6 of Article 27 (The right to information about the employment relationship and the right to appeal) and paragraphs 3 and 4 of Article 88 (The right to appeal of a public service employee), and Article 6 (A civil servant with special status) of the Contested Law in accordance with the Constitution and this Judgment, within six (6) months from the entry into force of this Judgment; and (iii) to stipulate that the Judgment enters into force upon its publication in the Official Gazette of the Republic of Kosovo.

The Judgment first clarifies that the Applicants, in essence, allege that (i) the procedure followed for the adoption of the Contested Law is in violation of Articles 77 and 78 of the Constitution; and (ii) Articles 9 (General requirements for admission of public officials), 12 (Government of the Republic of Kosovo), 46 (Appointment and mandate of lower and middle management positions) and 99 (Transitional provisions) of the Contested Law are contrary, among others, to Articles 3 [Equality Before the Law], 4 [Form of Government and Separation of Power], 7 [Values], 16 [Supremacy of the Constitution], 19 [Applicability of International Law], 46 [Protection of Property], and 101 [Civil Service] of the Constitution. In essence, the Applicants claim that the Contested Law (i) violates the constitutional principles related to the civil service/public administration, with emphasis on the independence of independent constitutional institutions through the interference and supervision by the executive power; and (ii) violates the fundamental rights and freedoms of public officials, with emphasis, in the low and middle management category, through the transformation of the positions of this category of officials from permanent mandate positions to temporary ones, including with retroactive effect to their acquired rights, resulting among other things, even in instability and political interference in the public administration, contrary to the obligations of the Republic of Kosovo regarding the reform in the public administration through the ratification of the Stabilization and Association Agreement. The Applicants’ allegations, in principle, are also supported by the Ombudsperson, while they are opposed by the Prime Minister of the Republic of Kosovo and the Parliamentary Group of VETËVENDOSJE! Movement. All arguments and counter-arguments of the parties before the Court are reflected in detail in the Court’s Judgment.

The Judgment further clarifies that the Court (i) has limited the constitutional review of the Contested Law to the scope of the provisions challenged by the Applicants and those related to them; and (ii) in this assessment, among other things, it elaborated and applied the general principles established by the Court, with emphasis on the Judgment of the Court KO203/19, regarding the assessment of Law no. 06/L-114 on Public Officials, the case law of the European Court of Human Rights (ECtHR), the relevant Opinions and Reports of the Venice Commission, including the contribution of the constitutional courts and/or equivalent member of the Forum of the Venice Commission; and the fundamental principles of the Organization for Economic Co-operation and Development (OECD/SIGMA) for public administration.

In the Court’s Judgment, the aforementioned principles were applied in the examination of each assessed article of the Contested Law. Having said that, and for the purposes of this summary, the Court will clarify the main findings regarding the Contested Law, namely: (i) the procedure followed by the Assembly for the adoption of the Contested Law; (ii) the independence of independent constitutional institutions in relation to the oversight competence of the Government; (iii) the determination of limited mandates related to low and medium-level management positions in the public administration; (iv) the effect of the limitation of mandates of the public officials who currently exercise management functions of low and medium level in the public administration; (v) the rights and obligations of public officials who are placed on the “Waiting Lists” of the public administration; (vi) “suitability” as a criterion for admission to the position of public official in the public administration; and (vii) the constitutional guarantees and rights to effective legal remedies and the judicial protection of rights of the officials/employees of the public administration.

  • the procedure followed by the Assembly for the adoption of the Contested Law

The Judgment initially clarifies that the Applicants allege that the procedure followed for the adoption of the contested Law is contrary to Articles 77 and 78 of the Constitution and the Rules of Procedure of the Assembly, putting emphasis, among others, on the fact that the latter was approved in the Assembly without having been reviewed in the permanent committees, namely “it was approved without being examined at all in the Permanent Committee on Budget, Labor and Transfer and the Committee on the Rights and Interests of Communities and Returns”.

In assessing this allegation, the Judgment initially clarifies that the Contested Law was examined in the Assembly according to Decision [No. 08-V-449] of the Assembly of 15 December 2022, rendered based on Article 123 (Avoidance of the Rules of Procedure) of the Rules of Procedure of the Assembly on avoiding procedural deadlines. Through that decision, it has been requested from the permanent committees to submit the relevant comments to the functional Committee on Public Administration, Local Government, Media and Regional Development, within the deadline determined by this Decision. Also, based on the case file, it results that the Committee on the Rights and Interests of Communities submitted the relevant contribution on time, while this is not the case with the Committee on Budget, Labor and Transfers. In the abovementioned context and taking into consideration, (i) the content of Article 77 of the Constitution, as far as it is relevant to the circumstances of the case, which specifies the competence of the Assembly to appoint permanent and functional committees, whereas it delegates the determination of the respective procedures in the level of the Rules of Procedure of the Assembly; and (ii) the content of Article 78 of the Constitution with respect to the Committee on Rights and Interests of Communities, the only committee the procedure relating to which is specified in the Constitution, and which specifies that after the request of the member of the Presidency of the Assembly and the decision-making of the aforementioned committee, the latter has a deadline of up to two (2) weeks to make recommendations relating to the proposed law, however since in the circumstances of the case at hand, this commission, has submitted the respective comments in the functional committee, then the Court must declare that the procedure relating to the issuance of the Contested Law, has not been argued to be in contradiction with the aforementioned articles of the Constitution.

Having said this, and in the context of the use of Article 123 of the Rules, namely the avoidance from procedural deadlines by the Assembly throughout the law-making process, the Court highlights two issues (i) the Assembly’s own designation, through the adoption of Articles 85 (Accelerated procedure for reading of draft laws) and 86 (Urgent procedure for reading of a draft law) of the its Rules of Procedure, that only draft laws relating to national security, public health, budgetary and financial issues or the issuance of measures for states of emergency according to Article 131 [State of Emergency] of the Constitution, are subject to the expedited and/or urgent draft law review procedures, whereas the Contested Law clearly does not belong to these categories; and (ii) the designation of the Assembly, that through Article 123 of the Rules of Procedure to enable the avoidance of the procedural deadlines specified with the Rules of Procedure, with a lower majority than the one required for its approval, namely two-thirds (2/3) of all deputies, according to Article 76 [Rules of Procedure] of the Constitution. In the aforementioned context, the Judgment clarifies that the compliance of Article 123 of the Rules of Procedure with the Constitution has not been contested before the Court, however, it recalls that the exercise of the legislative power is the primary and most essential function of the Assembly of the Republic of Kosovo, as established in Articles 4 [Form of Government and Separation of Power], 63 [General Principles] and 65 [Competencies of the Assembly] of the Constitution, and that according to Article 74 [Exercise of Function] of the Constitution, the representatives of the people are obliged to exercise this function in accordance with the Constitution, laws and rules of procedure of the Assembly.

  • regarding the independence of independent constitutional institutions in relation to the supervision competence of the Government

In the context of the Applicants’ allegations of violation of the independence of independent constitutional institutions through Article 12 of the Contested Law, the Judgment first clarifies that the latter must be interpreted in conjunction with its Article 13 (Ministry responsible for public administration) which specifies the manner of application of Article 12, and in conjunction with its Article 104 (Repeal) which repeals any provision of other laws that is in conflict with the Contested Law. The Judgment in this respect, among others, clarifies that (i) according to Article 12 of the Contested Law the Government of the Republic of Kosovo shall adopt and coordinate general state policies for the employment of public officials, as well as “supervise their implementation”; (ii) according to Article 13 of the Contested Law, the Ministry responsible for public administration, namely the Ministry of Internal Affairs, among others, is responsible for the supervision of the implementation of policies and legislation on public officials in the state administration institutions, receives from the institutions of the Republic of Kosovo, any necessary information in the area of labor relations and is the only state institution that has the competence to provide explanations regarding the provisions of the Contested Law; while (iii) according to Article 104 of the Contested Law, upon its entry into force, “any other provisions in contradiction with this Law shall be repealed”. In assessing the constitutionality of the aforementioned provisions of the Contested Law, the Judgment, elaborating on the constitutional principles of the separation and balancing of power and those established in its consolidated case law in the context of independent constitutional institutions, including regarding the Independent Oversight Board for the Civil Service of Kosovo, emphasizes two essential issues: (i) the independence of independent constitutional institutions established in the Constitution, including Independent Agencies established by the Assembly according to the provisions of Article 142 [Independent Agencies] of the Constitution; and (ii) the constitutional function of the Independent Oversight Board for the Civil Service of Kosovo according to the provisions of Article 101 [Civil Service] of the Constitution.

Regarding the first issue, the Judgment clarifies that based on the Contested Law, the same applies to the employees of the institutions defined in chapters IV, V, VII, VIII and XII of the Constitution, pertaining to the Assembly, the Presidency, the Justice System, the Constitutional Court and the Independent Institutions determined by the Constitution, to the extent that it “does not infringe on their functional and organizational independence guaranteed by the Constitution”. Moreover, the Contested Law categorizes the officials of the aforementioned institutions as “civil servants with a special status“, whose employment relationship is regulated by law and special acts, under the condition of the scope allowed by the Contested Law itself, but also under the protection of the principle of constitutionally guaranteed independence. According to the clarifications given in the Judgment, in principle, such regulation does not contradict the constitutional principles of balancing and separation of power established in Article 4 of the Constitution and the respective principles elaborated by the Judgments of the Court. Having said that, according to the clarifications given in the Judgment, this is not the case regarding the category of Independent Agencies, defined in Article 142 of the Constitution, and to which the Contested Law does not guarantee the necessary constitutional independence and autonomy, especially considering that based on Article 104 of the Contested Law, also all provisions of the laws approved by the Assembly that relate to Independent Agencies which are in contradiction with the Contested Law will be repealed. The Judgment further clarifies that while according to the case-law of the Court, the Independent Agencies established under Article 142 of the Constitution do not necessarily enjoy the same level of constitutional independence as the institutions specifically listed in Chapter XII of the Constitution, nevertheless, based on the latter, it is clear that they are not subject to the control and oversight of the executive power, but to the oversight of the Assembly based on the respective laws that the latter adopts according to Article 142 of the Constitution. The Judgment also emphasizes that the Contested Law defines the status of “A civil servant with special status” for a part of the executive power itself, including the employees of the Ministry responsible for public administration, namely the Ministry of Internal Affairs, while the exemption from this status of the employees of Independent Agencies defined in Article 142 of the Constitution, does not appear to have pursued a legitimate goal and/or to be proportional.

In addition, and in relation to the second issue, the Judgment emphasizes that the oversight competence related to the observance of the rules and principles that regulate the civil service through Article 101 of the Constitution, has been assigned to the Independent Oversight Board for the Civil Service of Kosovo. The constitutional independence and function of this institution has been elaborated by the Court in a number of Judgments, based on which, among other things, it has been clarified that precisely with the aim of ensuring an impartial, independent and professional civil service and/or public administration, the Constitution has defined a constitutional institution that is special and independent from the executive power with the competence to oversight the rules and principles that regulate the civil service of the Republic of Kosovo. The Judgment, further, clarifies that (i) the oversight competence of the Independent Oversight Board, defined by the Constitution, cannot be violated nor appropriated through the effect of norms that rank lower in the hierarchy of norms, namely through a law; moreover, (ii) the oversight competencies of the Government, specified in Articles 12 and 13 of the Contested Law, are clearly also competencies of the Independent Oversight Board based on Law No. 06/L-048 on the Independent Oversight Board, and which are infringed upon also through the Contested Law, according to which, any provision contrary to it, will be repealed upon its entry into force. The Judgment clarifies that the joint reading of Articles 12, 13 and 104 of the Contested Law, whereby the Independent Oversight Board is essentially stripped of its constitutional functions, and which are appropriated by the Government, results to be in contradiction with Articles 4 and 101 of the Constitution, respectively.

  • regarding the determination of limited term mandates for low and middle-level management positions in the public administration – the effect on rights after the entry into force of the Contested Law

In the context of the Applicants’ allegations of violation of the constitutional principles regarding the civil service, among other things, as a result of the definition of limited term mandates related to the low and middle-level management positions in the public administration, the Judgment first clarifies that according to Article 46 of the Contested Law, the category of low and middle-level management positions in the public administration, will be subject to limited term mandates, namely four (4) year mandates, with the possibility of extension for the same mandate duration under the conditions defined by law. The Court, elaborating and taking into account the basic constitutional principles regarding the rule of law, legal certainty, and the hierarchy of norms, as well as the contribution of the constitutional courts and/or the respective equivalents of the member states of the Venice Commission Forum, focused its assessment, in the context of the constitutionality of the aforementioned Article, in principle, (i) on the constitutional characteristics of the civil service based on Article 101 of the Constitution; and (ii) the obligations arising from the Stabilization Association Agreement in the context of the civil service/state administration, which, as an international agreement ratified by the Assembly of the Republic, based on paragraph 2 of Article 19 [Applicability of International Law] of the Constitution, has superiority over the laws in the legal order of the Republic of Kosovo.

In the aforementioned context, the Judgment clarifies that Article 101 of the Constitution, beyond (i) setting the criterion that the civil service must reflect the diversity of the people of Kosovo and take into consideration the principle of gender equality; and (ii) the determination that the Independent Oversight Board for the Civil Service, which ensures the implementation of civil service norms, should be established, does not further specify the issue of categorization of public officials and/or the duration or limitations concerning their respective mandates. The Judgment also, among others, clarifies that through the Stabilization Association Agreement ratified by the Assembly in 2015, the Republic of Kosovo has undertaken the obligation to reform the state administration in cooperation with the European Union, according to the provisions of Article 120 (Public Administration) of the aforementioned agreement, which, among other things, also refers to career development in the public service, but does not define obligations and/or specifics in the context of the categorization of public officials and/or the duration of their respective mandates. Moreover and in the context of the fundamental rights and freedoms and of the principle of legal certainty, the Judgement emphasizes that all public officials that are selected/appointed to low and middle-level management positions in the public administration in the future, namely after the entry into force of the Contested Law, will in advance have the necessary clarity and foreseeability in the context of the obligations they undertake and the rights they acquire, including the limited term mandates in the public administration.

Having said that, the Judgment also clarifies that based on the documents submitted to the Court by the Applicants, it results that the Opinion of the Legal Office of the European Union and SIGMA, among others, had pointed out the shortcomings of the reform in the public administration. Moreover, based on the contributions submitted to the Court through the Forum of the Venice Commission, it results that while the public administrations of the respective states, exceptionally define positions with limited mandates, in principle, none of them has undertaken a reform according to which, the positions with permanent mandates have been transformed into positions with temporary mandates, affecting the acquired rights of the officials of the respective state administrations.

However, the Judgment emphasizes that based on the Constitution, the Assembly exercises legislative power, while the Constitutional Court is responsible for the final interpretation of the Constitution. Taking into account the relevant competencies defined by the Constitution and the principle of separation and balancing of power, based on the case law of the Court, the latter is limited only to assessing the compatibility of the contested act with the Constitution, and as long as the same has not been infringed upon, it does not also assess the adequacy of public policies determined by the executive and/or legislative power and which are reflected in the laws adopted by the people’s representatives in the Assembly. As a consequence and taking into account that (i) Article 101 of the Constitution and Article 120 of the Stabilization Association Agreement, do not contain specific obligations in the context of the categorization and/or mandates of public officials in the state administration; and that (ii) this provision affects public officials selected/appointed in low and middle-level management positions after the entry into force of the Contested Law, the Court, finds that Article 46 of the Contested Law is not in conflict with the aforementioned provisions of the Constitution.

  • regarding the effect of the limitation of mandates for officials who currently exercise low and middle-level management functions in the public administration – the effect on rights acquired before the entry into force of the Contested Law

In the context of the Applicants’ allegations regarding the retroactive effects of the Contested Law concerning the officials who currently hold low and middle-level management positions with indefinite term mandates, acquired based on the existing laws on civil service/public officials, and as a consequence the violation of their constitutional rights, the Judgment initially clarifies that Article 99 of the Contested Law, among other things, stipulates that, at the latest one (1) year from the entry into force, all low and middle-level management positions will be subject to open and public competition. The Contested Law stipulates that the public officials who currently hold these positions have the right to apply in these competitions and in case of non-selection, (i) they will be systemized to professional positions for which they meet the conditions, and for the next four (4) years, will benefit from a transitional salary according to the provisions of the law; or (ii) will be placed on the “Waiting List” and could be dismissed from the civil service if they cannot be placed in professional positions. The Judgment clarifies that this category of state administration officials have been appointed to low and/or middle-level management positions based on the laws in force on civil service and/or public officials, on the basis of which they have undertaken obligations and/or acquired rights, including “legitimate expectations that may result in assets” based on the respective contracts with an indefinite term, whose method of modification and/or termination is clearly specified in the respective applicable laws. As a result, the constitutional review of Article 99 of the Contested Law also includes the obligation to assess the compatibility with fundamental rights and freedoms guaranteed by the Constitution with emphasis on Article 46 [Protection of Property] of the Constitution in conjunction with Article 1 (Protection of property) of Protocol No. 1 of the ECHR.

In the context of the rights guaranteed by the aforementioned articles, after elaborating on the general principles regarding the principle of legal certainty and acquired rights, including based on the case law of the ECtHR, the Judgment clarifies that these rights are not absolute and may be subject to limitations/interference based on Article 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution, only insofar as the respective limitation/interference is (i) “prescribed by law”; (ii) “pursues a legitimate aim; and (iii) is “reasonably proportionate to the aim sought to be achieved“.

The Judgment further clarifies that in the circumstances of Article 99 of the Contested Law, it is not disputed that there is a limitation/interference with the fundamental rights and freedoms of the current officials of the state administration who exercise low and middle-level managerial duties, among others, because the implementation of this article may result not only in the loss of the functions they exercise, but also in loss of the employment relationship, because based on the provisions of the Contested Law, (i) the above-mentioned category of officials, if not re-elected to the positions they have won based on the law in force, can be organized in professional positions with a lower salary or placed on the “Waiting List”, which can result in their dismissal from civil service; (ii) any refusal to be systemized in the offered professional position or even refusal to be placed on the “Waiting List”, results in dismissal from the civil service; furthermore, (iii) the latter do not have access to any legal remedies to challenge the acts of the public authority in the context of the implementation of Article 99 of the Contested Law. Having said that, and applying the principles stemming from the case law of the Court and the ECtHR, the Judgment clarifies that it is not disputed that the limitation/interference with acquired rights (i) is “prescribed by law”, namely by the Contested Law; and (ii) pursues the “legitimate aim” of reforming the state administration based on the principles of efficiency, meritocracy, inclusiveness and accountability, but it is disputable whether this limitation/interference with the respective fundamental rights and freedoms is “proportional in relation to the pursued aim”.

The Judgment, after applying the principles stemming from the relevant case-law of the ECtHR, emphasized that the solution stipulated by Article 99 of the Contested Law, does not present a “fair balance” between the stated goal of public interest and fundamental rights and freedoms, and consequently, is not proportional, among others, because (i) the same goal could have been achieved through less restrictive/interfering mechanisms with fundamental rights and freedoms through the implementation of the existing provisions of the Law in force on Public Officials, including also the detailed provisions of the Contested Law that are related, among others, to the performance evaluation and/or disciplinary measures, including in case of non-fulfillment of work tasks; (ii) the existing category of state administration officials who hold low or middle-level management positions, in violation of the constitutional rights to effective legal remedy and judicial protection of the rights established in Articles 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution, respectively, have been completely denied the right to appeal regarding placement in the relevant professional position, placement in the “Waiting List” or dismissal from civil service; and that (iii) based on the principle of legal certainty and prohibition of retroactive effect, according to the answers received by the constitutional courts and/or the corresponding equivalent members of the Venice Commission Forum, it results that such a reform of the public administration has either not been undertaken or has not passed the constitutionality assessment test, with the exception of the explanations provided by the Constitutional Court of Austria concerning the respective reform, which was implemented gradually and without affecting the officials who has permanent mandates/contracts, enabling them to choose between the career or position system, with respective benefits in the event they voluntarily accepted to transition to the position system in the public administration. Consequently, the Judgement states that Article 99 of the Contested Law is not in compliance with Article 46 of the Constitution in conjunction with Article 1 Protocol No. 1 of the ECHR.

  • regarding the rights and obligations of officials placed on the “Waiting Lists” in the public administration 

The Judgment also clarifies that Articles 46 and 99 of the Contested Law refer to its Article 67 (Waiting List) in relation to the “Waiting List”. While the Judgment has clarified that Article 46 of the Contested Law, including the concept of the “Waiting List” is a decision of the Assembly which, except for the effect defined in Article 99 of the Contested Law, is not contrary to the Constitution, the Court notes that the provisions of Article 67 of the Contested Law, however, raise issues of fundamental rights and freedoms of the relevant officials placed in this List. This is, among others, because the Contested Law, in the context of the “Waiting List” only determines the obligations of the relevant officials, without also determining their rights, but delegating the latter to be determined by the sub-legal act of the Ministry responsible for public administration. More precisely and according to the clarifications provided in the Judgment, Article 67 of the Contested Law, among other things, determines that during the period of up to nine (9) months of waiting before being systemized in a professional position and/or dismissal from civil service, the relevant officials (i) have the obligation to not have another employment relationship or otherwise, they lose the rights that may originate from the “Waiting List”; while (ii) their rights, including the salary and/or its level, are not guaranteed by the Contested Law, but according to the latter, will be determined by a sub-legal act. The Judgment clarifies that such a ratio between rights and obligations is not proportional, and, moreover, contrary to the criteria of “clarity” and “predictability” concerning the applicable law, embedded in the principle of legal certainty according to the interpretation of the case law of the ECtHR, of the Court and the relevant Venice Commission opinions.

  • as to “suitability ” as a criterion to be admitted to the position of public official in the public administration

In the context of the Applicants’ allegation regarding the criterion of “suitability ” on the basis of which public officials in the state administration can be admitted, and which, according to the allegation, violates the principle of legal certainty and, among other things, has the consequence of political interference with the recruitment policies in the public administration, the Judgment initially clarifies that Article 9 of the Contested Law, among other things, defines the general criteria for the admission of public officials, also adding the criterion of “suitability” for appointment to specific positions of public officials, the specification/definition of which, according to the relevant article, is delegated at the level of the sub-legal act approved by the Government with the proposal of the Ministry responsible for public administration. In assessing the constitutionality of this provision, the Judgment elaborates (i) the general principles stemming from the case law of the ECtHR, the case law of the Court and the Rule of Law Checklist of the Venice Commission regarding the principle of legal certainty embodied in the concept of rule of law guaranteed by Articles 3 and 7 of the Constitution, respectively; and (ii) the contributions of the constitutional courts and/or equivalents of member states of the Venice Commission Forum.

The Judgment, among other things, clarifies that among the criteria defined by paragraph 1 of Article 9 of the Contested Law, are also “to be fit in the health aspect to carry out the respective duty” and “have the education, professional work experience and/or skills required for the relevant position, category, class or group”, leaving the public authority a wide discretion of evaluation in the admission to duty of the public official. Having said that, these criteria, including the objective ones specified in the same paragraph, can prevail in their entirety, through a criterion of “suitability” specified by a sub-legal act on the basis of which the discretion of the public authority is disproportionate to the principle of “clarity” and “predictability” necessary in the context of the applicable law, including concerning the procedure of application and the following right to use the legal remedy of the candidates, in a state administration, which according to the Contested Law, among other things, is designated to be guided by the principle of legality, merit, transparency, professionalism, party’s impartiality and non-discrimination. As a result and taking into account the detailed principles related to legal certainty, including the obligation that the relevant provisions of the law are “clear, accessible and predictable”, the Court has assessed that the definition of the criterion of “suitability” is incompatible with the constitutional guarantees according to the clarifications given in the enacting clause of the Judgment.

  • regarding the constitutional rights to legal remedy and judicial protection of rights of the public officials in the state administration 

The Judgment emphasizes the fact that the right to a legal remedy and the right to judicial protection of rights defined in articles 32 and 54 of the Constitution in conjunction with article 13 (Right to an effective remedy) of the ECHR are among the most important fundamental rights of individuals, included in the context of the principle of access to justice provided by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR. The Judgment, among other things, clarifies that these rights have been violated in their entirety in the context of Article 99 of the Contested Law. Having said that, the Judgment also emphasizes the fact that Article 27 (The right to information about the employment relationship and the right to appeal) of the Contested Law in conjunction with its Article 88 (The right to appeal of a public service employee) also raise serious constitutional issues in the context of the aforementioned rights. This is primarily because while the rights of the civil servant to submit a complaint to the Independent Oversight Board and then to the competent court have been established, these rights have been conditioned only “in the cases provided for by this law”. The Judgment, based on the case law of the ECtHR, clarifies that the right to an effective legal remedy against any act of public authority that may have violated the fundamental rights and freedoms of the individual defined by law and/or the Constitution, in principle, cannot be limited. Secondly, the Judgment also clarifies that based on articles 27 and 88 of the Contested Law, the public servant’s right to appeal, namely legal remedy, to the Labor Inspectorate, and thereafter to the competent court, has been established. The Judgment emphasizes that such a legal definition is in full contradiction with the Law on Labor and the Law on Labor Inspectorate itself, which does not provide the latter with the competence to solve disputes from the employment relationship, and moreover with the principle of separation and balancing of powers defined in Article 4 of the Constitution, among other things because (i) The Labor Inspectorate, based on the law on its establishment, is an executive authority established by the Ministry of Labor and Social Welfare and is therefore an integral part of the executive power; and (ii) in the legal order of the Republic of Kosovo, which is based on the values and principles of the separation and balancing of powers, it is the judicial power and not the executive power that has the competence to decide with respect to disputes relating to rights and obligations, including those arising from the employment relationship.

All these principles have already been clarified by the Judgment in case KO27/21, published on 16 December 2022, by the Constitutional Court of the Republic of Kosovo.

This translation is unofficial and serves for informational purposes only

Applicant:

KO216/22, applicant: Isak Shabani and 10 (ten) other deputies of the Assembly of the Republic of Kosovo, and KO220/16, applicant Arben Gashi and 9 (nine) other deputies of the Assembly of the Republic of Kosovo

Type of Referral:

KO - Referral from state organisations

Type of act:

Judgment

Violation of constitutional rights

Article 3 - Equality Before the Law, Article 4, Article 7 – Values, Article 54 - Judicial Protection of Rights, Article 46, Article 32 - Right to Legal Remedies

Type of procedure followed before other institutions :

Other