Constitutional Court

Case KO 160/23, applicant: Abelard Tahiri and eleven (11) other deputies, constitutional review of “Decision No. Ref. L-VIII, SP-119 of the President of the Assembly of the Republic of Kosovo of 11 July 2023 on scheduling the plenary session of 13 July 2023”.

Key word: Interim measure, “Decision” of President of Assembly, agenda, “irreversible damage”, “public interest” 

KO160/23, Decision on Interim Measure, of 1 august 2023, published on 11 August 2023

The Constitutional Court of the Republic of Kosovo ruled on the request for interim measure in the case KO 160/23, regarding the constitutional review of “Decision No. Ref. L-VIII, SP-119 of the President of the Assembly of the Republic of Kosovo of 11 July 2023 on scheduling the plenary session of 13 July 2023”. The request for the constitutional review of the above-mentioned act of the Assembly was submitted to the Court by twelve (12) deputies of the Assembly pursuant to the authorization established under paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo. By seven (7) votes for and one (1) vote against, the Court decided to reject the request for imposing an interim measure regarding the above-mentioned act.

The Court’s decision clarifies that the Applicants request for the constitutional review of “Decision No. Ref. L-VIII, SP-119 of the President of the Assembly of the Republic of Kosovo of 11 July 2023 on scheduling the plenary session of 13 July 2023”, namely the letter of 11 July 2023 addressed to the deputies by the President of the Assembly, whereby he informs and invites the deputies to the plenary session of 13 July 2023, enclosing therein the agenda for the meeting. The Applicants allege that the above-mentioned act is not in compliance with (i) Article 68 [Sessions], Article 69 [Schedule of Sessions and Quorum] and Article 76 [Rules of Procedure] of the Constitution, in conjunction with (ii) Article 16 (President of the Assembly), Article 19 (Duties of the Presidency) and Article 52 (Agenda of the plenary session) of the Rules of Procedure of the Assembly of the Republic of Kosovo, underlining, inter alia, that (i) the deadline for convening and scheduling the plenary session, as stipulated in Article 52 (Agenda of the plenary session) of the Rules of Procedure, has not been complied with, according to which, among others, the agenda along with the relevant materials, must be distributed to the deputies at least two (2) working days prior to the plenary session; and (ii) contrary to paragraph 1 of Article 19 (Duties of the Presidency) of the Rules of Procedure, the agenda was not presented for approval at the plenary session of the Assembly on 13 July 2023, considering that there was no consensus in the Presidency of the Assembly regarding the respective agenda. Consequently, the Applicants request the Court (i) to declare the act concerned in violation of the Constitution; and accordingly, (ii) to annul the plenary session of the Assembly of the Republic held on 13 July 2023, with the annulment of all decisions, including the laws adopted in that session as a consequence.

The Court’s decision also clarifies that until a decision on the merits regarding the constitutional review of the challenged act is taken, the Applicants request the Court to impose an interim measure against the aforementioned act, namely the “Decision No. Ref. L-VIII, SP-119 of the President of the Assembly of the Republic of Kosovo of 11 July 2023 on scheduling the plenary session of 13 July 2023”, consequently suspending the effect of all decisions voted by the Assembly in the parliamentary session of 13 July 2023, including the entry into force of the laws adopted in that plenary session, in accordance with Article 80 [Adoption of Laws] of the Constitution of the Republic of Kosovo.

The Court’s decision, as far as it is relevant in the circumstances of the present case, clarifies that (i) pursuant to Article 116 [Legal Effect of Decisions] of the Constitution and Article 27 (Interim Measures) of the Law on the Constitutional Court, pending the final decision of the Court, the Court may suspend the effects of the challenged act upon the referral of a party or ex officio, if it finds that such interim measure would avoid irreparable damages and its imposition is in the public interest; and (ii) pursuant to paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution and Article 43 (Deadline) of the Law on the Constitutional Court, in the event of a referral for constitutional review before the Court, the suspensive effect applies to all the laws, as well as the decisions adopted in the Assembly, which undergo the subsequent promulgation and/or decreeing procedure by the President of the Republic.

The Court’s decision clarifies that based on the above-mentioned provisions, including its case law, it is evident that the challenged act, in the circumstances of the present case, is not subject to an ex-lege suspensive effect, and the Court must, therefore, decide to grant or reject the request for an interim measure. This decision-making, based on Rule 45 (Decision on Interim Measures) of the Rules of Procedure of the Constitutional Court, can be made jointly or separately from the main Referral, namely the constitutional review of the challenged act.

The Court’s decision further stipulates that, in the specific case, considering that what is challenged before the Court is not a law or a decision adopted by the Assembly, but a letter/act whereby the plenary session of 13 July 2023 was convened, a session in which, inter alia, laws that are subject to procedures and deadlines specified in Article 80 [Adoption of Laws] of the Constitution were adopted, in the interest of the principle of legal certainty and the public interest, the Court assessed the request for an interim measure separately from the assessment of the constitutional review of the challenged act before it, without prejudging the Court’s final decision in this aspect.

Based on the above-mentioned explanations, the Court assessed, through its decision, whether the conditions for imposing an interim measure, as stipulated in Article 116 [Legal Effect of Decisions] of the Constitution, Article 27 (Interim Measures) of the Law on the Constitutional Court, and Rules 44 (Request for Interim Measures) and 45 (Decision on Interim Measures) of the Rules of Procedure of the Court, have been met in the specific case. According to these provisions, it is required, inter alia, that the interim measure is related to (i) “the matter that is the subject of the procedure before it [the Court]”; provided that the party requesting an interim measure proves that (ii) the interim measure is necessary “to avoid risks or irreparable damages”; or that the interim measure is in the “public interest”.

The Court, according to the clarifications elaborated in the Decision to be published, taking into account that (i) the Applicants’ Referral refers to the examination of the “Decision No. Ref. L-VIII, SP-119 of the President of the Assembly of the Republic of Kosovo of 11 July 2023 on scheduling the plenary session of 13 July 2023”; while the imposing of the interim measure is requested concerning the decisions approved at the session of the Assembly on 13 July 2023, despite the fact that the Applicants have not specifically challenged these decisions separately before the Court; (ii) the Applicants have not presented any evidence or reasoning as to why suspending the effect of all the decisions adopted by the Assembly in the session of 13 July 2023 contributes to avoiding risks or irreparable damage and, therefore, serves the public interest; and (iii) by assessing and balancing the effects of imposing or not imposing an interim measure and suspending all decisions adopted by the Assembly in the plneary session of 13 July 2023, in light of the principle of legal certainty, as an essential value of the rule of law and the constitutional order of the Republic of Kosovo, the Court decided to reject the request for imposing an interim measure against the challenged act concerned, emphasizing that such a decision in no way prejudges the Court’s assessment regarding the main Referral, namely the request for constitutional review of the challenged act.

The Court’s decision finally clarifies that this decision is not related to and/or does not affect two decisions of the Assembly adopted at the plenary session of 13 July 2023 and which have been contested separately before the Court by the Assembly’s deputies, as per their authorizations pursuant to paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, namely (i) the Referral for constitutional review of Decision [No. 08-V-583] on the dismissal of Ms. Kimete Gashi as a member of the Public Procurement Review Body, already registered with the Court as the Referral KO157/23; and (ii) the Referral for constitutional review of the Law No. 08/L-142 on “amending and supplementing the laws that determine the amount of the benefit in the amount of the minimum wage, procedures on setting of minimum wage and tax rates on annual personal income”, already registered with the Court as the Referral KO158/23. Furthermore, as all parties concerned have been notified by the Court, the Referral in the case KO158/23, based on paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution and Article 43 (Deadline) of the Law on the Constitutional Court, is subject to a suspensive effect, and consequently, it cannot produce legal effect until the Constitutional Court of the Republic of Kosovo has rendered a final decision.

This translation is unofficial and serves for informational purposes only.