Constitutional Court

Case No. KO 98/20, Applicant: Hajrulla Çeko and 29 other deputies,  Constitutional review of Decision No. 52/2020, of the President of the Republic of Kosovo of 14 March 2020

Keywords: institutional referral, announcement of elections, postponement of elections, referral without subject of review

The subject matter of the Referral was the constitutional review of the Decision [No. 52/20] of the President of the Republic of Kosovo, of 14 March 2020, on the postponement of holding of extraordinary elections for President of the Municipality of Podujeva. The Applicants alleged that the challenged decision is not in accordance with: paragraph 4 of Article 84 [Competencies of the President], Article 7 [Values], Article 123 [General Principles], Article 45 [Freedom of Election and Participation] and paragraph 1 of Article 124 [Local Self-Government Organization and Operation] of the Constitution of the Republic of Kosovo, Article 21 of the Universal Declaration of Human Rights and Article 3 of Protocol No. 1 to the European Convention on Human Rights.

The Referral was based on sub-paragraph 1 of paragraph 2 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals], 29 [Accuracy of the Referral] and 30 [Deadlines] of Law No. 03/L-121 on the Constitutional Court, as well as Rules 32 [Filing of Referrals and Replies] and 67 [Referral pursuant to Article 113.2 (1) and (2) of the Constitution and Article 29 and 30 of the Law] of the Rules of Procedure of the Constitutional Court.

Conclusions

1. With regard to the circumstances of the present case, the Court takes into account paragraph (4) of Rule 35 of the Rules of Procedure, as well as Article 37 of the ECHR, on which occasion, on the issue of cases before it, answers two questions as follows: (i) first, whether the circumstances for which the Applicants directly complained still exist; and, (ii) second, whether the effect of an eventual breach of the Convention due to those circumstances has also been remedied. The Court also assessed whether it is still necessary to continue with the review of the present case, in the context of respect for human rights guaranteed by the Constitution and the Convention.

2. In terms of this analysis, the Court further concluded that in the present case, (i) as long as the reason for which the Decision of the President was challenged, that is the postponement of elections to indefinite period of time no longer exists; and (ii) while the effect of the eventual violation of Article 45 of the Constitution and Article 3 of Protocol 1 to the ECHR due to those circumstances has been addressed by setting a new election date (29 November 2020), the Court considers that the present case does not involve any special circumstances regarding the observance of human rights established in the Constitution and the Convention.

3. Accordingly, the Court finds that by the Decision of the President [No. 157/2020], the subject of the Applicants’ Referral has significantly changed. The current position, namely the setting of the election date is such a circumstance which consists in the fact that the referral in question, already has no reasoning and that the aim that was pursued to be achieved, has already been fully achieved. In light of this, the Court considers that there is no merit to further review this matter and such a reasoning was clearly expressed by the Court also in its case law (see: cases of the Court: KO63/12, Applicant: Alma Lama and 10 other deputies of the Assembly of the Republic of Kosovo, constitutional review of Articles 37, 38 and 39 of the Criminal Code No. 04/L-82 of the Republic of Kosovo, decision on striking out the Referral of 10 December 2012, paragraph 19; Case KO107/10, Applicant: Gani Geci and other deputies, constitutional review of the Decision of Assembly of 14 October 2010 regarding the Draft Strategy and the Decision of the Government on the Privatization of Kosovo Post & Telecommunication, Decision to strike out the Referral of 17 August 2011, paragraphs 24-26; Cases KI58, KI66 and KI94/12, Applicants: Selatin Gashi, Halit Azemi and group of Municipal Assembly Members of Viti, Request for constitutional review of the Decision of the Municipality of Mitrovica, Gjilan and Viti for conditioning the access of citizens to public services with payment of obligations towards publicly owned enterprises, Decision to strike out the Referral of 5 July 2013, paragraph 45).

4. Therefore, as a general procedural principle, the Court does not render decisions on cases where the matter does not exist and the case becomes without subject of review. This is a generally accepted principle of conduct of courts and it is analogous to the principle of judicial restraint (see: case KO63/12, cited above, paragraph 23; KI11/09, Tomë Krasniqi, constitutional review of Section 2.1 of the United Nations Mission in Kosovo (UNMIK) Administrative Direction No. 2003/12 and Article 20.1 of the Law on Radio Television of Kosovo, Law No. 02/L-47, Decision to strike out the Referral of 30 May 2011, paragraph 46).

5. In assessing the constitutionality of Decision No. 52/20 of the President of the Republic of Kosovo, of 14 March 2020, the Court decided by a majority of votes that the case has remained without subject of review and consequently decided:

• TO STRIKE OUT the Referral, in accordance with Rule 35 (4) of the Rules of Procedure;
• TO NOTIFY this decision to the parties;