Constitutional Court

KO58/19 , Applicant: Bilall Sherifi and 29 other deputies of the Assembly of the Republic of Kosovo

Constitutional review of decisions  No. 57/2019, No. 58/2019, No. 59/2019, No. 60/2019, No.61/2019, No.62/2019, No. 63/2019 and No. 65/2019 of the President of the Republic of Kosovo, of 28 March 2019

KO58/19, Judgment adopted on 29 July 2019, published on 14 August 2019

Key words: Institutional referral, Central Election Commission (CEC), parliamentary groups, constitutional question

The Referral was submitted by thirty (30) deputies of the Assembly of the Republic of Kosovo based on Article 113, paragraph 2, subparagraph 1, of the Constitution. Subject matter of the Referral was constitutional review of decisions of the President of the Republic of Kosovo for appointment of the members of the CEC of the Republic of Kosovo, namely:

1. Decision No. 57/2019, of 28 March 2019, for the appointment of Mr. Čemajl Kurtiši as a member of the CEC from the Bosnian community;
2. Decision No. 58/2019, of 28 March 2019, for the appointment of Mr. Stevan Veselinović as a member of the CEC from the Serbian community;
3. Decision No. 59/2019, of 28 March 2019, for the appointment of Mr. Ercan Şpat as a member of the CEC from the Turkish community;
4. Decision No. 60/2019, of 28 March 2019, for the appointment of Mr. Alfred Kinolli as a member of the CEC from the Roma, Ashkali and Egyptian community;
5. Decision No. 61/2019, of 28 March 2019, for the appointment of Mrs. Nazlie Bala as a member of the CEC;
6. Decision No. 62/2019, of 28 March 2019, for the appointment of Mr. Adnan Rrustemi as a member of the CEC;
7. Decision No. 63/2019, of 28 March 2019, for the appointment of Mr. Florian Dushi as a member of the CEC;
8. Decision No. Decision No. 65/2019, of 28 March 2019, for the appointment of Mr. Sami Hamiti as a member of the CEC.

The Applicants alleged that the above-mentioned decisions are not in compliance with paragraph 4 of Article 139 [Central Election Commission] of the Constitution of the Republic of Kosovo.

The Applicants, in essence, before the Court raised the following main allegations:

The first objection concerned with the form of appointment of the CEC members from the parliamentary groups that emerged from the political entities that won the elections for the Assembly of Kosovo.  The Applicants considered the need to put emphasis on the terminology used by the Constitution of Kosovo in the relevant provision of Article 139, paragraph 4, of the Constitution, which reads: “Six (6) members shall be appointed by the six largest parliamentary groups represented in the Assembly”.  Thus, the Applicants allege that the term “represented” has the of a post-festum character, which in itself implies that “it is not necessary that a political entity that has won certain seats in the Assembly be represented at the level of a parliamentary group with that number of deputies with a mandate”.

They also allege that it is the provision of Article 70, paragraph 1, of the Constitution that provides the freedom to exercise the function of deputy within the scope of his/her mandate, without being subject to any other binding mandate. According to the Applicants, “the appointment of CEC members, taking into account the structure of parliamentary groups according to the result of the election of political entities, would preserve political freedom of representation in the Assembly of Kosovo and would deny political initiatives in the form of parliamentary groups of deputies”.

The Applicants allege that the President, by interpreting the “largest parliamentary groups” as a party, coalition, civic initiative that emerged from political entities that won the elections for the Assembly of Kosovo and appointing CEC members by challenged acts, according to that interpretation, violated the constitutional provisions.  This is because “the largest parliamentary groups”, according to Article 139, paragraph 4 of the Constitution, are those groups that are formed after the constitution of the Assembly of the Republic of Kosovo, and exist as such at the moment when the President appoints the CEC members.

The Court considered that the Referral of the Applicants is admissible based on the requirements established by the Constitution, the Law on the Constitutional Court and the Rules of Procedure of the Constitutional Court.

In elaborating the merits of the Referral, the Court reviewed the allegations of the Applicants. In this respect, the Court finds that the challenged decisions meet the requirements to be considered by the Court under Article 113, paragraph 2, subparagraph 1 of the Constitution.  This is because the Court considers that the challenged decisions, regardless of their name, are binding in nature and concern the appointment of members of the CEC, which is an independent constitutional institution mandated to organize and monitor elections in Kosovo on the basis of the powers conferred on it based on the Constitution and the Law on General Elections in Kosovo (hereinafter: Laws on Elections).

The Court recalls, first of all, that the Constitution, apart from specifying the manner of appointment of CEC members and from what parliamentary groups are appointed, does not contain any specific definition as to whether the parliamentary groups for the purpose of appointing CEC members are those parliamentary groups:  i) that emerged from political entities that won the elections for the Assembly of Kosovo, or, ii) those that were established after the constitution of the Assembly of the Republic of Kosovo.

In this regard, the Court assessed the constitutional and other provisions pertaining to the parliamentary groups of the Assembly, having regard to (i) the constitutional role of the CEC as an independent institution for the management of elections and referendums, (ii) the manner of appointing CEC members; (iii) the duration of a mandate and (iv) the time of their appointment.

The Court recalls that CEC members are not mandated for a fixed term.  Their mandate is related to the mandate of the election cycle and, in principle, begins no later than 60 (sixty) days after the election results are confirmed, with the exception of the exceptions provided for in Article 61, paragraph 3, subparagraph (e) of the Law on Elections.

Therefore, pursuant to the abovementioned provisions, the election of CEC members is not related to the issue of constitution of the Assembly, which may or may not take place within 60 (sixty) days from the date of confirmation of the election results, or with parliamentary groups in the narrow sense, which are formed after the constitution of the Assembly, when parliamentary life begins in the full sense of the word, which enables the organization of deputies into the parliamentary groups that can be distinguished from parties or coalitions that have emerged from the elections.

The appointment of CEC members based on the results of general elections ensures that there is no institutional vacuum in the CEC, regardless of the time of the establishment of the Assembly.  This means that the President, based on Article 61.4 of the Law on Elections, may exercise his/her duty of appointing CEC members within 60 (sixty) days from the date of confirmation of the elections by parliamentary groups political entities based on the results of the elections for the Assembly.

Therefore, the Court finds that the largest parliamentary groups represented in the Assembly, for the purposes of Article 139 paragraph 4 of the Constitution, are those 6 (six) parties, coalitions, citizens’ initiatives, which have more seats in the Assembly than any other party, coalition, citizens’ initiatives that participated in the elections for the Assembly as such.

Therefore, the Court considers that the challenged acts do not violate the provisions of the Constitution, namely paragraph 4 of Article 139 [Central Election Commission] of the Constitution.