Constitutional Court

KO160/23 Applicant: Abelard Tahiri and 11 other deputies of the Assembly of the Republic of Kosovo, constitutional review of “Decision No. Ref. L-VIII, SP-119 of 11 July 2023 on scheduling of the plenary session of 13 July 2023, of the President of the Assembly of the Republic of Kosovo”

KO160/23, Resolution on inadmissibility of 1 November 2023, published on 21 November 2023

 The Constitutional Court of the Republic of Kosovo has decided on the Referral in the case KO 160/23 with the applicant Abelard Tahiri and ten (10) other deputies of the Assembly of the Republic of Kosovo, filed before the Constitutional Court based on paragraph 5 of article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo, pertaining to the review of constitutionality of “Decision No. Ref. L-VIII, SP-119 of 11 July 2023, for scheduling of the plenary session of 13 July 2023, of the President of the Assembly of the Republic of Kosovo”. The Court has, unanimously, decided to declare the Referral inadmissible for review on the merits because it is not ratione materiae in accordance with the Constitution.

The Resolution of the Court clarifies that the applicants requested the constitutional review of the “Decision No. Ref. L-VIII, SP-119 of 11 July 2023, for scheduling of the plenary session of 13 July 2023, of the President of the Assembly of the Republic of Kosovo”, namely the letter of 11 July 2023 addressed to the deputies of Assembly by the President of the Assembly, through which they were informed and invited for the plenary session of 13 July 2023, with the agenda attached thereby. The applicants argued that the aforementioned 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 for the plenary session) of Rules of Procedure of the Assembly of the Republic of Kosovo, emphasizing, among others, that (i) the deadline for convening and scheduling the plenary session was not respected as per article 52 (Agenda of the plenary session) of Rules of Procedure of the Assembly, according to which, among others, the agenda, together with the respective materials, are distributed to the members of the Assembly at least two (2) working days prior the plenary session; and that (ii) contrary to paragraph 1 of article 19 (Duties of the Presidency) of Rules of Procedure of the Assembly, the agenda was not presented for approval at the plenary session of the Assembly of 13 July 2023, considering that there was no consensus in the Presidency of the Assembly pertaining to the respective agenda. Consequently, the applicants requested the Court to (i) declare the aforementioned act in violation with the Constitution; and as a consequence (ii) to annul the plenary session of the Assembly of the Republic of Kosovo, held on 13 July 2023, with the consequence of annulling all decisions, including the laws approved in this session.

The Resolution of the Court also recalls that the applicants requested the Court to issue an interim measure against the aforementioned act, until a decision on its merits has been rendered pertaining to the constitutional review of the contested act, suspending thereby the effect of all decisions approved by the Assembly in the plenary session of 13 July 2023, including the entry into force of the laws approved in that session. The Court, through its Decision on Interim Measure in case KO 160/23 of 1 August 2023, had decided to reject the interim measure pertaining to the contested act.

In the context of evaluating the constitutional criteria for admissibility for the review on the merits of the respective referral, the Resolution of the Court clarifies that, in order for a referral filed based on paragraph 5 of article 113 [Jurisdiction and Authorized Parties] of the Constitution to be admissible, it (i) must be filed by at least 10 (ten) deputies of the Assembly; (ii) must be filed within a period of 8 (eight) days from date of adoption of the contested act; and (iii) the applicants must contest the constitutionality of any law or decision “adopted” by the Assembly, regarding the substance and/or the procedure followed, criterias which must be fulfilled cumulatively.

A matter of dispute in the circumstances of the concrete case was whether the contested act of the Assembly is an act that has been subject to “adoption” by the Assembly as specifically required in paragraph 5 of article 113 [Jurisdiction and Authorized Parties] of the Constitution. In this context, the Resolution clarifies that the “Decision No. Ref. L-VIII, SP-119 of 11 July 2023, for scheduling of the plenary session of 13 July 2023, of the President of the Assembly of the Republic of Kosovo” has been contested before the Court, and that the latter was not subjected to the vote of the deputies of the Assembly and therefore it cannot qualify as a “decision approved by the Assembly” for the purposes of paragraph 5 of article 113 [Jurisdiction and Authorized Parties] of the Constitution and subsequently cannot be subject to a meritorious review by the Court. The Resolution further emphasizes that such a position of the Court has been consistent since 2013, namely since the Resolution on Inadmissibility in the case KO115/13 filed before the Court by Ardian Gjini and eleven (11) other deputies of the Assembly. The Resolution also clarifies that based on the consolidated case-law of the Court, while the formal designation/name of the acts, including those approved by the Assembly, is not determinant for the admissibility of a referral, pursuant to paragraph 5 of article 113 [Jurisdiction and Parties Authorized] of the Constitution, the Court has only reviewed the constitutionality of the acts of the Assembly which have been subject to “approval” by the Assembly, whereas such is not the case in the circumstances of the concrete case.

The Court’s Resolution finally clarifies that this decision-making is not related to and/or does not affect the two decisions of the Assembly approved in the plenary session of 13 July 2023, which have been contested separately in the Court by deputies of the Assembly, as per the authorizations stipulated in paragraph 5 of article 113 [Jurisdiction and Authorized Parties] of the Constitution, namely (i) the Referral for the Constitutional Review of Decision [No. 08-V-583] for the dismissal of Mrs. Kimete Gashi from the position of member of the Procurement Review Body, registered in the Court as Referral KO 157/23; as well as (ii) the Referral for Constitutional Review of 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”, registered in the Court as Referral KO 158/23.

This translation is unofficial and serves for informational purposes only.

Note:

This press release was prepared by the Secretariat of the Court for informational purposes only. The full text of the decision will be submitted to the parties involved in the case, will be published on the Court’s website and in the Official Gazette, once the relevant procedures established in the Law on the Constitutional Court and the Rules of Procedure of the Court have been completed. The summary published through this notice may be subject to language and technical corrections in the final draft