Constitutional Court

KO147/22, Applicant: Supreme Court of the Republic of Kosovo, Constitutional review of Article 177, point 1.6 of the Statute of the University of Prishtina  

Keywords: Referral of the Supreme Court, incidental control, UP Statute

In the circumstances of the present case, the Supreme Court, acting as a referring court, raised doubts regarding the constitutionality of Article 17 of the Law on Higher Education, solely in relation to and for the purpose of assessing point 1.6 of Article 117 of the UP Statute, which stipulates that for the position of Assistant Professor at UP, a candidate appointed for the first time must not be older than 50 years. Thus, the main allegation of the Supreme Court was related to the constitutional review of the UP Statute. Based on the above reflections and taking into account that Article 17.1 of the Law on Higher Education represents only the legal framework upon which the Statute of the University of Prishtina is proposed and subsequently approved, as well as the statutes of other public universities in Kosovo, the Court considers that in the circumstances of the present case, it assesses only the fulfillment of the eligibility criteria regarding the allegations of unconstitutionality alleged to stem from point 1.6 of Article 117 of the UP Statute.

The Applicant challenges the Supreme Court’s findings before the Court, alleging a violation of rights guaranteed under 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, among other things, as a result of the breach of the principles of (i) res judicata; and (ii) equality of arms and adversarial proceedings.

Regarding the eligibility criteria specified in Article 113.8 of the Constitution, the Court found that the Supreme Court is an authorized party to submit such a Referral. On the other hand, the Court analyzed the allegations of the Supreme Court, which raised doubts about the constitutionality of point 1.6 of Article 177 of the Statute of the University of Prishtina, considering that this provision may be in contradiction with the Constitution.

In its assessment, the Court initially clarified that concerning the fulfillment of eligibility criteria within the constitutional procedure outlined in Article 113.8, only law as a legal act adopted by the Assembly, and no other acts, can be subject to the constitutional review.

Finally, the Court concludes that the eligibility criterion according to which regular courts may refer to the Constitutional Court cases related to the constitutional compatibility of a law is not met in the present case because the UP Statute is not considered a “law”. Therefore, the Court found it unnecessary to further examine other eligibility criteria, and in accordance with Article 113.8 of the Constitution, Articles 20, 51, 52 and 53 of the Law and Rule 75 of the Rules of Procedure, the Court declares the Referral inadmissible for further