Constitutional Court

KO95/20, Applicant, Liburn Aliu and 16 other deputies of the Assembly of the Republic of Kosovo, Constitutional review of Decision No. 07/V-014 of the Assembly of the Republic of Kosovo, of 3 June 2020, on the Election of the Government of the Republic of Kosovo

KO95/20, Judgment adopted on 21 December 2020

Keywords: institutional referral, loss of mandate, criminal offense, majority of all deputies, admissible referral

The Referral was based on paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 42 [Accuracy of the Referral] and 43 [Deadline] of Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo, as well as Rule 74 [Referral pursuant to Article 113.5 of the Constitution and Articles 42 and 43 of the Law] of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo. The subject matter of the Referral was the constitutional review of Decision No. 07/V-014 of the Assembly of the Republic of Kosovo, of 3 June 2020, on the Election of the Government of the Republic of Kosovo, which according to the Applicant’s allegation, was not in compliance with paragraph 3 of Article 95 [Election of the Government], in conjunction with subparagraph 6 of paragraph 3 of Article 70 [Mandate of the Deputies] of the Constitution.

In the title – CONCLUSIONS – of this Judgment, the Court summarized the essence of the case and stated the following:

On 28 March and 20 August 2019, Etem Arifi was sentenced by a final Judgment of the Court of Appeals to one year and three months of imprisonment. On 6 October 2019, the early elections were held for the Assembly of the Republic of Kosovo. Etem Arifi ran and was elected a deputy of the Assembly of the Republic of Kosovo. On 27 November 2019, the CEC certified the election results and Etem Arifi was also on the list of certified deputies. On 26 December 2019, the constitutive meeting of the Assembly was held where the mandate of Etem Arifi was confirmed. Since then, Etem Arifi continued to exercise the function of a deputy, even though he was sentenced by a final court sentence, for a criminal offense, to one year and three months of imprisonment.

In this constitutional referral, 17 deputies of the Assembly of the Republic of Kosovo challenged the constitutionality of Decision No. 07/V-014 of the Assembly of the Republic of Kosovo, on the election of the Government, issued on 3 June 2020. The Applicants allege that the Decision in question is contrary to the Constitution, namely paragraph 3 of Article 95 [Election of the Government], in conjunction with sub-paragraph 6 of paragraph 3 of Article 70 [Mandate of the Deputies] of the Constitution. This is because, according to the Applicants, Etem Arifi also participated in the voting procedure of the challenged Decision, whose vote was invalid due to his sentence of one year and three months imprisonment, by a final court decision.

The Court noted that the basic question contained in this Referral is whether Etem Arifi had a valid mandate at the time the challenged Decision was adopted in the Assembly on the election of the Government (in the voting of which he had participated).

In this respect, the Court took into account: the responses submitted by the member states of the Venice Commission Forum, the views of the Venice Commission; as well as the previous practice of the Assembly of the Republic of Kosovo, for similar situations.

With regard to the constitutional and legal provisions in the Republic of Kosovo, which provide answers to the issues raised by this Referral, the Court found that:

• Article 71.1 of the Constitution, in conjunction with Article 29.1 (q) of the Law on General Elections, stipulates that no person can be a candidate for deputy for elections to the Assembly, if he was convicted of a criminal offense by a final court decision in the past three years;

• Article 70.3 (6) of the Constitution stipulates that the mandate of a deputy ends or becomes invalid if he/she is sentenced by a final court decision to one or more years of imprisonment. This constitutional definition is reinforced by Article 8.1.6 of the Law on the Rights and Responsibilities of the Deputy, Article 112.1.a of the Law on General Elections, as well as Article 25.1.d of the Rules of Procedure of the Assembly;

The Court considers that, as regards the right to run in the parliamentary elections, Articles 45, 55 and 71.1 of the Constitution should be read in conjunction. Thus, Article 45 of the Constitution generally deals with electoral rights, stipulating in a general way that they can be limited by court decisions, while Article 55 establishes the cumulative conditions under which the human rights guaranteed by the Constitution may be limited. While Article 71 of the Constitution – which deals exclusively with the “qualifications” to run for a deputy of the Assembly – stipulates that every citizen of the Republic of Kosovo who is eighteen (18) years or older and meets the legal criteria is eligible to become a candidate for the deputy. These “legal criteria”, referred to in Article 71 of the Constitution, are defined by the Law on General Elections, which in Article 29.1 (q) clearly and explicitly states that no person can be a candidate for deputy for elections to the Assembly, if he/she has been convicted for a criminal offense by a final court decision in the past three years. This constitutional and legal definition is in line with the practice followed by many democratic countries, as noted by the relevant documents of the Venice Commission, as well as the responses of the member states of the Venice Commission Forum.

The Court emphasizes that the abovementioned constitutional and legal norms, which have to do with the impossibility (ineligibility) to run for deputy in the general elections, as well as with the termination or invalidity of the mandate of the deputy, as a consequence of the sentence with imprisonment for the commission of criminal offenses, should not be seen as an end in itself. In essence, these norms do not have the primary purpose of punishing certain individuals by preventing them from exercising the function of deputy, but have as their basic purpose the protection of constitutional integrity and civic credibility in the legislature, as a pillar of parliamentary democracy.

The Court considered that the civic credibility in the Assembly of the Republic of Kosovo is violated if – despite the prohibitions imposed by Article 71 of the Constitution in conjunction with Article 29.1 (q) of the Law on General Elections – it is allowed that the mandate of a deputy is won and exercised by a person convicted of a criminal offense by a final court decision valid in the Republic of Kosovo.

In this respect, the Court draws attention to the Report of the Venice Commission, which states that “legality is the first element of the Rule of Law and implies that the law must be followed, by individuals and by the authorities. The exercise of political power by people who seriously infringed the law puts at risk the implementation of this principle [rule of law], which is on its turn a prerequisite of democracy, and may therefore endanger the democratic nature of the state”. (See Report of the Venice Commission on the Exclusion of Offenders from Parliament, CDL-AD(2015)036, of 23 November 2018, paragraph 168).

In this spirit, the Court noted that it is a clear constitutional requirement embodied in Article 71.1 in conjunction with Article 70.3 (6) of the Constitution, that it is incompatible with the Constitution for a person to win and hold the mandate of deputy if convicted for a criminal offense, by a final court decision, as defined by these provisions. This requirement is reinforced by Articles 29 and 112 of the Law on General Elections, as well as Article 8.1.6 of the Law on the Rights and Responsibilities of the Deputy.

The Court further emphasized that the fact that Article 70.3 (6) of the Constitution, Article 8.1.6 of the Law on the Rights and Responsibilities of the Deputy and Article 112.1 (a) of the Law on General Elections refer to the conviction of a deputy (i.e. the conviction after he has won the mandate), is a reflection of the presumption that Article 29.1 (q) of the Law on General Elections, which is based on Article 71.1 of the Constitution, does not allow a person sentenced to imprisonment during the last three years before elections to run for deputy and win the mandate of deputy.

Therefore, based on the clear language of Article 71.1 of the Constitution in conjunction with Article 29.1 (q) of the Law on General Elections, as well as sub-paragraph 6 of paragraph 3 of Article 70 of the Constitution, the Court considers that no person can win and hold a valid mandate of a deputy if he/she is convicted of a criminal offense as provided by these provisions, by a final court decision, if against him/her there is a sentencing decision that is in force in the Republic of Kosovo.

The Court notes the explanation of the CEC that according to Judgment AA.-Uzh. No. 16/2017, of 19 September 2017 of the Supreme Court, “no one can be denied the right to run in the elections, if such a right has not been taken away by a court decision, which means that the candidate must be found guilty by a final decision, and the court, has imposed the accessory punishment “deprivation of the right to be elected”.

However, the Court considers that the Law on General Elections does not require that persons convicted of criminal offenses necessarily be sentenced to an accessory punishment “deprivation of the right to be elected”, so that they are not allowed to run in parliamentary elections. This is because, according to Article 29.1 of the Law on General Elections, among others, the following two grounds are provided: (i) deprivation of the right to be a candidate in elections by decision of the ECAP and the court; and (ii) the impossibility of being a candidate due to being found guilty of a criminal offense by a final court decision in the past three years. These are different/separate grounds that cause inability/ineligibility to be a candidate. The Court is of the opinion that this interpretation is also consistent with the related reading of Articles 45, 55 and 71 of the Constitution.

The Court considers it important to note that the candidacy of Etem Arifi in the parliamentary elections, his election as a deputy and the exercise of his mandate as a deputy – all this after he was sentenced to one year and three months imprisonment by a final court decision – reveals the existence of normative ambiguity and serious shortcomings in the institutional mechanisms of the Republic of Kosovo, which are competent to guarantee the legality and constitutional integrity of electoral processes and parliamentary activity. This ambiguity is also evident in the answers given by the relevant bodies of the Assembly and the CEC.

In this regard, the Court emphasizes the need for the Assembly of the Republic of Kosovo with its committees, in cooperation with relevant institutions, including the KJC and the CEC, to clarify and consolidate inter-institutional cooperation and normative aspects that relate to the candidacy in parliamentary elections and the exercise of the mandate of deputy, by persons convicted of criminal offenses.

This is necessary to avoid paradoxical situations, from the constitutional point of view, where a person, after being convicted by a final court decision as provided by the relevant articles of the Constitution and laws, is allowed to run in parliamentary elections, to be elected a deputy, to have his mandate verified, as well as to continue to exercise the function of deputy in the Assembly of the Republic of Kosovo, even while serving an imprisonment sentence. Meanwhile, the Constitution and the relevant laws set clear normative barriers to prevent persons sentenced to imprisonment for committing criminal offenses, to be elected deputies and to exercise the mandate of deputies.

With regard to the election of the Government, the Court notes that in order for the Government to be elected, in accordance with paragraph 3 of Article 95 of the Constitution, at least sixty-one (61) deputies of the Assembly must vote “for” the Government. In this case, according to official documents of the Assembly, the Court notes that on 3 June 2020, sixty one (61) deputies voted “for” the Government, namely for the challenged Decision. Etem Arifi also voted for the adoption of the challenged Decision. As the Court found that the mandate of Etem Arifi was invalid prior to the vote of the challenged Decision, that Decision had received only sixty (60) valid votes. Consequently, the procedure for electing the Government was not conducted in accordance with paragraph 3 of Article 95 [Election of the Government] of the Constitution, because the Government did not receive a majority of votes of all deputies of the Assembly of the Republic of Kosovo.

The Court notes that Article 95 of the Constitution, as interpreted through its case law, provides for two attempts to elect the Government by the Assembly. In both cases, the Government to be considered elected must have a majority of votes of all deputies of the Assembly, namely sixty-one (61) votes. If the Government is not elected even after the second attempt, Article 95.4 of the Constitution provides for the announcement of elections by the President of the Republic of Kosovo.

The Court recalls that the Government voted by Decision No. 07/V-014 of the Assembly of 3 June 2020 is based on the Decree No. 24/2020 of the President, of 30 April 2020, issued based on paragraph 4 of Article 95 of the Constitution, namely the second attempt to elect the Government. In this regard, the Court recalls the interpretation given in Judgment KO72/20 where it stated that “the elections will be inevitable in case of failure of the election of the Government in the second attempt, […] in which case, based on paragraph 4 of Article 95 of the Constitution, the President announces the elections, which must be held no later than forty (40) days from the day of their announcement”.

In light of this, the Court notes that in the present case paragraph 4 of Article 95 of the Constitution is set in motion, according to which the President of the Republic of Kosovo announces the elections, which must be held no later than forty (40) days from the day of their announcement.

The Court considers it important to emphasize that it is aware that Etem Arifi has participated in other voting procedures in the Assembly, even though he did not have a valid mandate. However, based on the principle non ultra petita (“not beyond the request”), the Court is limited to the constitutional review of the challenged act by the referral submitted before it, namely Decision No. 07/V-014, of the Assembly of the Republic of Kosovo, regarding the Election of the Government of the Republic of Kosovo.

The Court considers it necessary to clarify also that, based on the principle of legal certainty, as well as the fact that this Judgment cannot have retroactive effect, the decisions of the current Government remain in force, and the Government remains in office until the election of the new Government.