Constitutional Court

KO134/21, Applicant: Ramush Haradinaj and nine (9) other deputies of the Assembly of the Republic of Kosovo, constitutional review of Decision no. 08-V-036 of the Assembly of the Republic of Kosovo of 8 July 2021

KO134/21, Judgment adopted on 1 August 2023, published on 5 September 2023

Key words: Referral by deputies, constitutionality of the decision of the Assembly, competences of the assembly

The Constitutional Court of the Republic of Kosovo has decided on the Referral in case KO 134/21, regarding the constitutional review of the Decision [no. 08-V-036] of 8 July 2021 of the Assembly of the Republic of Kosovo on the dismissal of the eight (8) members of the Board of Radio Television of Kosovo. The Referral for the constitutional review of the aforementioned Decision of the Assembly was submitted to the Court by ten (10) deputies of the Assembly, based on the authorizations established in paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo. The Judgment clarifies that, as all interested parties have been notified, after the submission of this Referral and until December 2022 when the following judge of the Constitutional Court was decreed, the latter did not have a decision-making quorum regarding the Referral KO134/21.

In the case KO134/21, the Court unanimously decided to (i) declare the Referral admissible; and (ii) reject the request for interim measure regarding the effects of the challenged Decision. Whereas, with five (5) votes for and two (2) votes against, the Court has decided to hold that (i) the Decision [no. 08-V-036] of 8 July 2021 of the Assembly of the Republic of Kosovo on the dismissal of all members of RTK’s Board is not in compliance with paragraph 1 of Article 7 [Values] and paragraph 9 of Article 65 [Competencies of the Assembly] of the Constitution; and (ii) the aforementioned finding, namely the Court’s Judgment, has no retroactive effect and does not affect the acquired rights of third parties.

The Court’s Judgment initially clarifies that the circumstances of the present case are related to the dismissal of all members of the board of the public broadcaster by the Assembly of the Republic of Kosovo, namely RTK’s Board, on 8 July 2021. As clarified in detail in the Judgment that will be published, the collective dismissal of RTK’s Board, whose members were elected in 2018 and 2020, respectively, was preceded by the review of RTK’s Annual Report for 2020 in the Committee for Public Administration, Local Government, Media and Regional Development and in the Committee for Budget, Labor and Transfer and who, after examining the latter, recommended the Assembly to (i) reject the approval of RTK’s Annual Report for 2020; and (ii) on the basis of “professional incapability”, to dismiss all the members of RTK’s Board. The Assembly of the Republic of Kosovo, in the same session, namely that of 8 July 2021, rejected the approval of RTK’s Annual Report and dismissed all the members of RTK’s Board. The Applicants before the Court challenge the constitutionality of the challenged Decision of the Assembly, arguing, among other things, that it was rendered in violation of (i) the competence of the Assembly for the supervision of RTK under paragraph 9 of Article 65 [Competences of the Assembly] of the Constitution and the respective provisions of the Law no. 04/L-046 on the Radio Television of Kosovo, including Articles 4 [Form of Government and Separation of Power] and 7 [Values] of the Constitution, respectively; and (ii) the specified fundamental rights and freedoms of RTK’s Board members. The Applicants’ allegations are supported by the comments submitted to the Court by RTK and are opposed by the parliamentary group of the Vetëvendosje Movement.

The Judgment emphasizes the fact that the aforementioned circumstances and allegations in this case before the Court, among other things, have raised issues related to (i) the constitutional competence of the Assembly of the Republic of Kosovo to oversee the work of public institutions, including RTK, which, based on the Constitution and laws, report to the Assembly, and the relevant restrictions based on the Law on RTK approved by the Assembly; (ii) the independence and autonomy of the public broadcaster not only based on the Law on RTK, but also pursuant to relevant international instruments, including those directly applicable in the constitutional order of the Republic of Kosovo, on the one hand, and the obligation of the public broadcaster for transparency and accountability towards the supervising authority and the public, on the other hand; and (iii) the positive obligations of the state, in this case the Assembly, to exercise the competence of supervision based on the principles stemming from the Constitution, the European Convention on Human Rights and other international instruments, including the Recommendations of the Committee of Ministers of the Council of Europe, to guarantee the independence of public broadcasters and the freedom and pluralism of the media, taking into account their essential role and contribution in a society based on the rule of law and democratic values.

In the context of the issues above, the Judgment first elaborates (i) the general principles that originate from the case law of the European Court of Human Rights in the context of Article 10 (Freedom of expression) of the European Convention on Human Rights; and (ii) the answers received by the Constitutional Courts and/or the corresponding equivalent members of the Forum of the Venice Commission regarding the status/independence but also the method of dismissal of the members of the boards/supervisory structures of the public broadcasters. The Judgment further elaborates the principles that originate, among others, from (i) the Recommendation no. R (96) 10 of the Committee of Ministers to Member States of the Council of Europe on the guarantee of the independence of public service broadcasting, including its Annex and Explanatory Memorandum; (ii) the Declaration of the Committee of Ministers of the Council of Europe to Member States on the guarantee of the independence of public service broadcasting; (iii) Recommendation CM/Rec (2012) 1 of the Committee of Ministers to Member States of the Council of Europe on public service media governance; (iv) the Parliamentary Assembly Resolution 1636 (2008): Indicators for Media in a Democracy; (v) Relevant opinions of the Venice Commission, including Opinion CDL-AD(2005)017 on the compatibility of the “Gasparri” and “Frattini” laws of Italy with the standards of the Venice Commission in the field of freedom of expression and pluralism of the media, and Opinion CDL- AD(2015)015 on the media legislation of Hungary; (vi) the Report of the European Broadcasting Union “Public service media under Article 10 of the European Convention on Human Rights”; and (vii) the Report of the European Broadcasting Union “Legal Focus: Governance Principles for Public Service Media”.

In the context of the principles arising from the analysis of the constitutional principles, including the aforementioned documents, the Judgment initially clarifies that the Assembly exercises the relevant function based on the competencies established in, among others, Article 4 [Form of Government and Separation of Power] and 65 [Competencies of the Assembly] of the Constitution, including the competence to (i) approve laws, resolutions and other general acts; and (ii) to oversee the work of the Government and other public institutions, which, based on the Constitution and laws, report to the Assembly. Both competencies constitute the essence of the constitutional function of the Assembly. Having said this, based, among other things, on Articles 65 [Competencies of the Assembly] and 74 [Exercise of Function] of the Constitution, in the context of the constitutional competence of supervision, the Assembly is conditioned to exercise this function in compliance with (i) constitutional provisions, including those defined by Articles 3 [Equality Before the Law], 4 [Form of Government and Separation of Power] and 7 [Values] of the Constitution, respectively; and (ii) within the limits and authorizations defined in the laws approved by the Assembly itself in relation to the public institutions that report to/are supervised by the Assembly. In the context of exercising the supervisory function related to the public broadcaster and taking into account the essential importance of media freedom and pluralism in a constitutional order founded on democratic values, beyond the limitations set by the Law on RTK approved by the Assembly, the constitutional values defined by Article 7 [Values], Article 40 [Freedom of Expression] and Article 42 [Freedom of Media] of the Constitution, do have a special importance.

The latter, in principle and as far as it is relevant in the circumstances of the present case, establish guarantees for (i) freedom and pluralism of the media; and (ii) freedom of expression, including the right to express, disseminate and receive information, opinions and other messages without being hindered by anyone. These provisions are related to Article 10 (Freedom of expression) of the European Convention on Human Rights and which, based on the interpretation established in the case law of the European Court of Human Rights and elaborated in the Judgment, extends the guarantees and the relevant protection also related to the independence of public broadcasters, with an emphasis on the positive obligation of the state to protect them from the arbitrary and/or disproportionate actions of the state itself, in accordance with the relevant legitimate purpose, always with an emphasis on the essential role and contribution of public broadcasters and media in democratic societies.

Based on the above, the Judgment emphasizes that the guarantees for the independence and autonomy of the public broadcaster, namely RTK stem from the constitutional guarantees and the applicable international instruments on the freedom of expression and media freedom, as per the interpretation of the European Court of Human Rights, as well as from Articles 40 [Freedom of Expression] and 42 [Freedom of Media] of the Constitution and the Law on RTK itself, based on which, among other things, (i) RTK has “the status of an independent public institution of particular importance”; and (ii) the Assembly has the obligation to “ensure its institutional autonomy”. Moreover, the same law, among other things, and as far as it is relevant to the circumstances of the present case, defines (i) the limitations of the Assembly’s supervision over RTK and the circumstances in which this supervision can be exercised; and (ii) the manner of appointing and dismissing RTK’s Board members, provisions that are interpreted in the light of guarantees and stem from the Constitution and/or the principles of international instruments in the field of media freedom and pluralism, including public broadcasters.

The Judgment clarifies that based on the provisions of the Law on RTK, (i) the manner of election and appointment of members of RTK’s Board is determined in such a way as to ensure membership on staggered terms, that not all members of the Board have acquired and/or exercise their respective mandates at the same time, this being in accordance with the standards stemming from international instruments, and with the aim that RTK’s Board has a pluralist composition and is not necessarily elected by the same parliamentary majority in the Assembly; while (ii) the dismissal of RTK’s Board members by the Assembly is possible, according to the procedure and grounds specified in this law, including “professional incapability”, the basis on which all of RTK’s Board members were dismissed in the present case. Having said that, the Judgment also clarifies that one of the essential guarantees regarding the independence of the supervisory structures/boards of public broadcasters, based on the relevant international instruments, including the responses of the Constitutional Courts and/or their equivalent members of the Venice Commission Forum, is the dismissal of their members based on a defined legal basis and procedure. In the circumstances of the dismissal of the members of RTK’s Board by the challenged Decision of the Assembly, according to the clarifications given in the Judgment, it is disputed whether there was a legal basis for (i) the dismissal of all members of RTK’s Board, based on (ii) the finding of “professional incapability” of the Board in its entirety, as a result of the review and refusal to approve RTK’s Annual Report for 2020.

In this context, the Judgment clarifies that (i) based on the Law on RTK, RTK’s Board members are appointed and act in their personal capacity, as determined through Recommendation no. R (96)10 of the Committee of Ministers regarding the rights and obligations of members of boards/supervisory structures of public broadcasters; (ii) the Law on RTK does not define a legal basis for the dismissal of RTK’s Board in its entirety, while the contributions submitted by the Forum of the Venice Commission specify that the collective dismissals of the boards/supervisory structures of the public broadcaster by the supervisory authorities is possible only when such possibility is specifically defined by the applicable law; and (iii) the Law on RTK stipulates that RTK submits “the annual public, debate report and the opinion of the RTK Board on the public debate report”, to the Assembly of the Republic of Kosovo, “for orientation purposes”, and unlike other cases in which the legislator specifically defines the approval competence of the Assembly regarding certain acts of RTK’s Board, this is not the case with the Annual Report. The Judgment in this context emphasizes the recommendations of the European Broadcasting Union, according to which the supervisory authorities should not have the power to approve the annual reports and, moreover, the possible determination of the legislator that the dismissal of the members of the boards/management structures of the public broadcasters be possible also based on the annual report, among other things, “opens the door to undue political interference, it undermines the role of the supervisory body, it may lead to self-censorship with regard to editorial content”.

Based on the above and other elaborations in the Judgment, the Court finds that in the dismissal of all members of RTK’s Board, namely the collective dismissal of the board of the public broadcaster for “professional incapability” ascertained through the review of RTK’s Annual Report for the year 2020, the Assembly acted without a legal basis in the context of the dismissal of the Board in its entirety, as a result of the rejection of the relevant Annual Report and consequently, contrary to the provisions of the Law on RTK. Consequently, in issuing the challenged Decision, the Assembly has exceeded the limits of the supervisory competence defined in paragraph 9 of Article 65 [Competencies of the Assembly] of the Constitution and, moreover, has violated the independence of the public broadcaster, whose role is essential for the freedom and pluralism of the media in a democratic society, contrary to the values defined in paragraph 1 of Article 7 [Values] of the Constitution of the Republic of Kosovo.

The Judgment also clarifies that in the assessment of similar constitutional issues in the context of the exercise of the Assembly’s oversight function in relation to the institutions that report to the latter on the basis of the law, when the applicable law has enabled the dismissal of the respective boards in their entirety and consequently the Assembly has acted in accordance with such legal authorizations, such as the case of the Court KO139/21 regarding the dismissal of the members of the Board of the Railway Regulatory Authority, the Court has not found a constitutional violation. Having said that, the constitutional legitimization of a decision of the Assembly to dismiss the members of the board of the public broadcaster exceeding the legal authorizations, would constitute a dangerous precedent for the interference of the state with the independence and autonomy of the public broadcaster, including the freedom and pluralism of the media in the Republic of Kosovo.

The Judgment also emphasizes that the principle of independence and autonomy of public broadcasters and consequently, the obligation of the supervisory authority to respect the latter is balanced with the principle of transparency and accountability of the public broadcaster, and consequently, the corresponding obligation towards the supervisory authority, namely the Assembly and the public. The members of the boards of the public broadcaster, namely the members of RTK’s Board, are subject to the obligations pursuant to the Law on RTK and all applicable laws of the Republic of Kosovo, including the principles of full accountability and transparency towards the supervisory authority, in the manner defined by law and applicable international instruments. The finding of the Court in relation to the challenged Decision emphasizes these principles, including the importance of the public broadcaster, but also the positive obligations of the state, namely the Republic of Kosovo, to protect and guarantee the freedom and pluralism of the media and all the guarantees that originate from the constitutional rights defined in the context of freedom of expression and of the media, including as interpreted by the case law of the European Court of Human Rights, and stipulated by applicable international instruments in the constitutional order of the Republic of Kosovo.

The Judgment, finally, clarifies that this finding of the Court does not have the retroactive effect and based on the principle of legal certainty, it does not affect the acquired rights of third parties, namely new members of RTK’s Board, whose election by the Assembly has not been disputed before the Court. Moreover, the Judgment, referring to the case law of the Court, clarifies that the Court does not have the competence to grant the relevant compensation when it finds a constitutional violation, but that such a clarification does not prejudice the rights of the dismissed members of RTK’s Board by the challenged Decision of the Assembly, to follow the relevant procedures before the regular courts. This Judgment is also supplemented with a dissenting opinion.

This translation is unofficial and serves for informational purposes only.