Constitutional Court

KO203/19, Applicant: the Ombudsperson, Constitutional review of specific Articles of Law No. 06/L-114 on Public Officials

KO203/19, Judgment adopted on 30 June 2020, published on 9 July 2020

Keywords: Institutional referral, separation of power, independence of independent institutions, equality before the law, public officials

The Referral was based on paragraph 2, subparagraph 1, of Article 113 [Jurisdiction and Authorized Parties] and paragraph 2 of Article 116 [Legal Effect of Decisions] of the Constitution; Articles 22, 27, 29 and 30 of Law No. 03/L-121 on the Constitutional Court, and Rules 32, 56, and 57 of the Rules of Procedure of the Constitutional Court. The subject matter of the Referral was the constitutional review of  Articles 2 (paragraph 3), 5 (paragraph 1, subparagraph 1. 2 and paragraph 2), 10 (paragraphs 1 and 2), 11, 14 (paragraph 5), 15 ( paragraphs 4 and 6), 17 (paragraph 7), 31 (paragraph 3), 32 (paragraph 5), 33 (paragraph 5), 34 (paragraph 16), 35 (paragraph 6), 37 (paragraph 5), 38 ( paragraph 7), 39 (paragraph 11), 40 (paragraph 12), 41 (paragraph 6), 42 (paragraphs 10 and 11), 43 (paragraph 13), 44 (paragraph 4), 48 (paragraph 9), 49 (paragraph 6), 52 (paragraph 7), 54 (paragraph 6), 67 (paragraph 11), 68 (paragraph 8), 70 (paragraph 8), 71 (paragraph 8), 75, 80 (paragraph 4), 83 ( paragraph 18) and 85 of Law No. 06/L-114 on Public Officials, published in the Official Gazette of the Republic of Kosovo, on 11 March 2019, and which entered into force six (6) months after its publication in the Official Gazette. The Applicant alleged that the challenged Articles are not in compliance with paragraph 2 of Article 132 [Role and Competencies of the Ombudsperson] of the Constitution of the Republic of Kosovo, and other constitutional provisions governing the status of independent constitutional institutions. In his Referral, the Applicant also requested the Constitutional Court to impose interim measure for immediate suspension of the challenged provisions, which the Court approved after the first hearing on 19 November 2019, for a period until 28 February 2020, and which extended it for another two times, until 28 April and 30 June 2020 respectively.

In the title – CONCLUSIONS – of this Judgment, the Court summarized the essence of the case and emphasized the following:

In assessing the constitutionality of the Law No. 06/L-114 on Public Officials the Court, unanimously decided: (i) that the referral is admissible for review on merits; (ii) that Articles 2 (paragraph 3), 4 (paragraphs 3 and 4), 5 (paragraph 1, subparagraph 1. 2 and paragraph 2), 10 (paragraphs 1 and 2), 11, 14 (paragraph 5), 15 (paragraphs 4 and 6), 17 (paragraph 7), 31 (paragraph 3), 32 (paragraph 5), 33 (paragraph 5), 34 (paragraph 16), 35 (paragraph 6), 37 (paragraph 5), 38 (paragraph 7), 39 (paragraph 11), 40 (paragraph 12), 41 (paragraph 6), 42 (paragraphs 10 and 11), 43 (paragraph 13), 44 (paragraph 4), 48 (paragraph 9), 49 (paragraph 6), 52 (paragraph 7), 54 (paragraph 6), 67 (paragraph 11), 68 (paragraph 8), 70 (paragraph 8), 71 (paragraph 7), 75, 80 (paragraph 4), 83 (paragraph 18) and 85 of the Law no. 06/L-114 on Public Officials, are not in compliance with Articles 4, 7, 102, 108, 109, 110, 110, 115, 132, 136, 139, 140 and 141 of the Constitution; (iii) the challenged Law does not apply in relation to: Kosovo Judicial Council; Kosovo Prosecutorial Council; the Constitutional Court; the Ombudsperson Institution; Auditor -General of Kosovo; Central Election Commission; the Central Bank of Kosovo and the Independent Media Commission, while it violates their functional and organizational independence guaranteed by the Constitution; (iv) the challenged Law does not infringe the provisions of the Constitution in relation to the Kosovo Forensic Agency and the Kosovo Police Civil Servants; (v) the Assembly of the Republic of Kosovo must take the necessary actions to supplement and amend the Law No. 06/L-114 on Public Officials in accordance with the findings of this Judgment, as regards the officials of the institutions indicated under point (iii); and (vi) in order to repeal the interim measure.

The constitutional matter involved in the said referral is the compliance with the Constitution of the challenged Law voted by the Assembly, respectively the assessment whether it is in accordance with the principle of “separation of powers”, “independence of independent constitutional institutions” and the principle of equality before the law, guaranteed by the above-mentioned articles of the Constitution. The Court examined the constitutionality of the challenged law only in relation to the above-mentioned state institutions as the Applicant did not challenge the constitutionality of the challenged Law in its entirety and in relation to all public officials regulated by the challenged Law.

With regard to the institutions of the justice system set out in Chapter VII [Justice System] of the Constitution, the Court found that the challenged Law gives the Government broad powers to manage and supervise civil servants of public administration, including civil servants of the institutions of the Judicial power, such as officials of the Kosovo Judicial Council and Kosovo Prosecutorial Council. Moreover, the challenged law gives the Government the power to issue a range of sub-legal acts to further regulate important matters concerning civil servants such as recruitment, appointment, promotion, working hours, and classification of positions, disciplinary violations, which in essence also affect the functioning, classification of positions but also the systematization and organizational structure of the relevant institutions of the Judiciary and Independent Institutions. The Assembly, although through the challenged Law has given the Government the power to manage the civil service system in all institutions, including the Justice System, it has determined that the Presidency of the Assembly is entitled to issue sub-legal acts regarding the Assembly servants.

By this legislative solution it is ensured that the Government, respectively the Executive authority will not have “interference” competencies in the management of the employees of the Assembly, respectively the Legislature; whereas for the Judicial power and Independent Institutions no guarantee is foreseen to prevent “interferences” in the management of their employees. The Court has ascertained that the Assembly has failed to determine the same exception also for the employees of the Justice System so as to ensure the separation of powers not only in terms of judges and prosecutors but also in relation to their support staff, just as it had done for the servants of the Assembly and the Government.

Therefore, the Court assessed that, by not including civil servants of the institutions set out in Chapter VII [Justice System] in the exceptions of Article 4 [Civil Servants with Special Status], paragraphs 3 and 4 of the challenged Law, the challenged law violates the principle of the separation of powers guaranteed by Articles 4 and 7 of the Constitution as well as the independence of the institutions of the justice system set out in Chapter VII [Justice System] of the Constitution, namely the Kosovo Judicial Council and the Kosovo Prosecutorial Council. Consequently, the Court found that the challenged law is not in compliance with the Constitution in relation to these institutions and does not apply to these institutions while it violates their institutional and organizational independence guaranteed by the Constitution.

As regards the Applicant’s allegations regarding the violation of the independence of independent constitutional institutions set out in Chapter VIII [Constitutional Court] and XII [Independent Institutions] of the Constitution, the Court refers to Independent Institutions expressly listed in Chapter XII [Independent Institutions], specifically in Articles 132-135 [Role and Competencies of the Ombudsperson], 136-138 [Auditor-General of Kosovo], 139 [Central Election Commission], 140 [Central Bank of Kosovo] and 141 [Independent Media Commission], as well as with respect to the Court as set out in Chapter VIII [Constitutional Court] of the Constitution. In this respect, the Independent Constitutional Institutions based on the Constitution are authorized to decide on their internal organization, including the regulation of certain specifics related to their personnel, in order to ensure their functional and organizational independence. Therefore, the Court emphasized that according to the Constitution and relevant laws, as well as the case law of this Court, elaborated in details in the Judgment, the personnel of independent constitutional institutions are subject to the rules of civil service as long as they do not violate their independence. The regulations which create direct “interference” in their functional and organizational independence are incompatible with the Constitution and the principles and values proclaimed therein.

In this respect, the Court assessed that the Assembly, authorizing the Government through the challenged Law to issue sub-legal acts which regulate the issue of employment, including the classification of positions, criteria for recruitment and other issues in the Independent Constitutional Institutions, without taking into account their independence – violates the essence of the independence of the Independent Constitutional Institutions guaranteed by Article 115 of Chapter VIII of the Constitution and Articles 132, 136, 139, 140, 141 of Chapter XII of the Constitution, as State public authorities separated from the Legislature, the Executive authority, and the regular Judiciary. Therefore, the Court finds that the above-mentioned violations make the challenged Law inconsistent with the Constitution in relation to the Judiciary and Independent Institutions and that it cannot be applied to them as long as it does not respect their institutional and organizational independence.

As to the other institutions in respect of which the Applicant filed a claim with the Court, namely KFA officers and Kosovo Police Civil Servants, the Court stated that the Independent Agencies established under Article 142 of the Constitution do not have the same status with that of the Independent Constitutional Institutions explicitly mentioned in Chapter XII of the Constitution. This is because unlike other institutions referred to in Chapter XII of the Constitution, “Independent Agencies” provided by Article 142 of the Constitution “are institutions established by the Assembly, based on the respective laws, which regulate their establishment, operation and competencies.” So, unlike the fact that the Assembly can create and shut down “by law” Independent Agencies; The Assembly can never “shut down” by law any of the five independent institutions mentioned above. This constitutes the main difference between the Independent Institutions referred to in Chapter XII of the Constitution.

In this respect, the Court found that both the employees of the Kosovo Forensic Agency and the civil servants of the Kosovo Police are not in an equivalent position with the KIA officials; police officers and the officers of the police inspectorate; and Kosovo customs officials, and consequently it is not necessary to treat them in the same way. This is due to the fact that the principle of unequal treatment is expressed only in cases where such treatment is done for the same or analogous situations. In the present case, we cannot talk about an unequal treatment because the KFA officials and the civil servants of the Kosovo Police are not in the same or similar position, or analogous to the officials in relation to whom they are (self) compared. Consequently, the Court considers that the challenged law, including KFA employees and Kosovo Police civil servants in the field of application of the challenged Law, does not violate the principle of equality guaranteed by Article 24 of the Constitution in relation to Article 14 of the ECHR.

In the end, the Court concluded that it is not necessary for the challenged Law to be repealed in its entirety. In the circumstances of the present case, the analysis led to a conclusion that the non-implementation of the challenged Law in relation to the institutions mentioned above, does not make the Law unenforceable in practice. Consequently, the Court found that the Assembly is obliged to take the necessary actions to supplement and amend the Law No. 06/L-114 on Public Officials in accordance with the findings of the present Judgment, in relation to the employees of the institutions specifically defined in the Enacting Clause of the Judgment. Until the supplementation and amendment of the Law No. 06/L-114 on Public Officials by the Assembly, the provisions of this Law shall apply only insofar as it does not infringe the functional and organizational independence of the Independent Institutions specifically referred to in the Enacting Clause of this Judgment. While in relation to all other institutions, Law No. 06/L-114 on Public Officials shall apply from the entry into force of the present Judgment.