Constitutional Court

KO145/21, Applicant, Municipality of Kamenica, Constitutional review of Decision No. 01B/24 of the Ministry of Education, Science, Technology and Innovation, of 23 April 2021

The Court assessed the constitutionality of the Decision [no. 01B/24] of 23 April 2021 of the Ministry of Education, Science, Technology and Innovation (hereinafter: MESTI). The request for constitutional review of this act was submitted to the Court by the Municipality of Kamenica based on the authorizations established in paragraph 4 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo. In assessing the constitutionality of the challenged Decision, the Court unanimously decided that: (i) the Referral is admissible; (ii) Decision [no. 01B/24] of 23 April 2021 of MESTI, is not in compliance with paragraph 2 of Article 12 [Local Government], paragraphs 1 and 3 of Article 123 [General Principles] and paragraphs 2 and 3 of Article 124 [Local Self-Government Organization and Operation] of the Constitution; (iii) to reject the request for an interim measure; and (iv) to reject the request for withdrawal of the referral.

• Facts of the case

The circumstances of this case are related to the reorganization of schools in the Municipality of Kamenica in 2019, a reorganization which was initiated through the relevant decisions of the Mayor of the Municipality, inter alia, with the justification of the decrease in the number of students in some schools and lack of genuine infrastructure of the educational institutions. Initially, the Ministry of Local Government Administration ascertained that the relevant decisions were issued in accordance with applicable laws, namely the own competencies of the municipalities and MESTI inspected the implementation of these decisions. However, some parents of the affected students refused the implementation of these decisions and challenged them through administrative conflict, requesting the issuance of interim measures in order to suspend the implementation of the decisions of the Municipality. The Supreme Court, based on the case file, rejected to suspend the implementation of the relevant decisions. Considering that a number of students did not attend classes according to the decisions of the Municipality, in 2021 MESTI formed a committee to assess the non-attendance of classes by 441 students, which, among other things, recommended that in order to address the situation, MESTI and the Municipality should: (i) take harmonized action; and (ii) establish a working group to analyze the situation in schools. However, MESTI issued the challenged Decision, based on which it organized the “accelerated alternative education for 441 students of the Municipality of Kamenica”. This Decision was challenged by the Municipality of Kamenica before the Court, claiming that by it, MESTI had interfered with own competencies of the Municipality, and consequently, infringed upon municipal responsibilities in violation of constitutional guarantees.

• Applicant’s allegations and counter-arguments of MESTI and the Ministry of Local Government Administration

The Applicant alleges that the challenged Decision of the MESTI violated its municipal responsibilities in violation of Articles 12, 123 and 124 of the Constitution in conjunction with Article 2 (Constitutional Basis and Law on Local Self-Government) and Article 4 (Scope of Local Self-Government) of the European Charter of Local Self-Government, stating, in essence, that: (i) The challenged decision was rendered in violation of Article 12 of the Constitution in conjunction with paragraph (h) of Article 17 (Own Competences) of Law No. 03/L-040 on Local Self-Government, because based on this provision the municipality has full and exclusive competence to provide public preschool, primary and secondary education, including registration and licensing of educational institutions; (ii) based on applicable laws, the MESTI has no competence to organize alternative or supplementary teaching and may only request the municipality to organize this type of classes; and (iii) MESTI has no competence to determine the locations of educational institutions nor to oblige the municipality to hold alternative teaching in unlicensed educational institutions which no longer exist as school facilities. MESTI counter-arguments, among others, emphasize that in issuing the challenged Decision, it was based on Government Regulation No. 02/2021, on the Areas of Administrative Responsibility of the Office of the Prime Minister and the Ministries and considers that it is the obligation of the state, in accordance with international principles for the protection of human rights, to ensure the implementation of the fundamental right to education, namely ensuring access to educational institutions. The Ministry of Local Government Administration, through the comments submitted to the Court, supports the arguments of MESTI.

• Admissibility of the Referral

After submitting the request for constitutional review of the challenged Decision by the Mayor of the Municipality of Kamenica, Mr. Qëndron Kastrati, on 17 October 2021, namely 14 November 2021, after the second round of local elections in the Republic of Kosovo, Mr. Kadri Rahimaj was elected Mayor of the Municipality of Kamenica. The latter, through his representative, on 5 January 2022, submitted to the Court a request for withdrawal of case KO145/21, reasoning that there is no legal interest in its review. The Court, based on Rule 35 (Withdrawal, Dismissal and Rejection of Referrals) of the Rules of Procedure, according to which, notwithstanding the request for withdrawal, the Court may determine to decide on the initial referral, first assessed the request of the new Mayor of the Municipality, but decided to reject the latter, given the public interest for the continuation of the decision on merits in the case, emphasizing the importance of clarifying the allegations of violation of constitutional principles related to local self-government.

• Merits

In addressing the Applicant’s allegations, the Court first examined the general principles regarding local self-government established in the Constitution, the European Charter of Local Self-Government, the relevant Venice Commission Opinions on the principles of local government and the applicable laws specifying the competences of the Municipality and MESTI in the field of education, namely the Law on Local Self-Government, Law No. 04/L-032 on Pre-University Education and Law No. 03/L-068 on Education in Municipalities of the Republic of Kosovo.

The Court, based on Articles 12, 123 and 124 of the Constitution, namely, among others, stated that: (i) the basic territorial units of local self-government in the Republic of Kosovo are municipalities; (ii) the organization and competencies of the local self-government units are regulated by law and the establishment of municipalities, the borders, the competencies and the manner of their organization and functioning are regulated by law; (iii) the municipalities have their own competencies, expanded and delegated in accordance with the law; and (iv) the administrative review of municipal acts by the central authorities in the area of ​​their competencies, is limited to ensuring compliance with the Constitution and the law. Furthermore, based on these constitutional articles, the Court emphasized that the activity of local self-government bodies is based on the Constitution and the laws of the Republic of Kosovo and respects the European Charter of Local Self-Government. The latter, inter alia, and insofar as it is relevant to the circumstances of the present case, stipulates that: (i) local authorities, within the limits of the law, will have full discretion to exercise their initiative in relation to any matter which is not excluded from their competence and has not been assigned to any other authority; (ii) the competencies conferred on local authorities should normally be full and exclusive and that they may not be undermined or limited by another authority, central or regional, except as provided by law; and (iii) any administrative control over local authorities may be exercised only in accordance with the forms and in the cases provided for by the Constitution or by law.

Local self-government is of such importance in the constitutional order that the Constitution: (i) has defined these guarantees, inter alia in its Basic Provisions of the Constitution; (ii) has determined the observance of the European Charter of Local Self-Government; and (iii) in order to ensure the protection of these guarantees, in its Article 113, it has given municipalities direct access to the Constitutional Court, in the capacity of authorized parties, to challenge the constitutionality of laws or acts of the Government which infringe upon municipal responsibilities or diminish the revenues of the municipality, in case the relevant municipality is affected by that law or act.

In compliance with the abovementioned guarantees of the Constitution and the European Charter of Local Self-Government and their reference to the obligation to implement these guarantees also through the applicable laws, the Court also recalled that pursuant to Article 17 of the Law on Local Self-Government, municipalities have “full and exclusive” powers in providing public pre-school, primary and secondary education, including the registration and licensing of educational institutions, employment, payment salaries and training instructors and education administrators. On the other hand, MESTI, based on the Law on Pre-University Education and the Law on Municipal Education, among others, has the main responsibility for planning, setting standards and quality assurance of the pre-university education system and the responsibility to promote and improve the quality and efficiency of education and training through education inspection, monitoring and evaluation in order to increase the quality and oversee the implementation of applicable legislation. In the context of the reports of the relevant inspectors, as defined in Article 8 (Inspection of education) of the Law on Pre-University Education, and insofar as relevant to the circumstances of the case, MESTI may request the implementation of additional or alternative teaching, if shortcomings are observed in implementing the curriculum in a municipality.

In this context, the Court emphasized that: (i) the provision of public preschool, primary and secondary education, based on the Law on Local Self-Government, is own competence of the Municipality and that these competencies are full and exclusive; and (ii) in its inspection role, as established in the Law on Pre-University Education, the MESTI “may require the implementation of additional or alternative classes” if deficiencies are observed in the implementation of the curriculum. In the circumstances of this case, the relevant report of the MESTI committee of 14 April 2021, among other things, recommended the undertaking of harmonized actions between the Ministry, the Municipality and the parents “to enable the immediate return of students to school”. However, referring to the abovementioned Regulation of the Government, MESTI issued the challenged Decision, by which, among other things, organized accelerated alternative education for the Municipality of Kamenica, deciding to organize classes in five (5) respective schools of the Municipality of Kamenica, the schools that the Applicant had previously reorganized through decisions, as part of his reform.

After analyzing the constitutional principles, those of the European Charter of Local Self-Government and applicable laws and according to the explanations given in the published Judgment, the Court, inter alia, stated that in organizing the accelerated alternative education and determining the organization of education in relevant school facilities in the Municipality of Kamenica,  MESTI through the challenged Decision has exceeded its competence and violated municipal responsibilities, namely interfered with the own competencies of the Municipality of Kamenica regarding the provision of public primary and secondary education in violation of constitutional and legal guarantees. The Court emphasized the importance of respecting the constitutional principles regarding local self-government and the obligation of the central power to exercise any administrative control over local authorities only according to the forms and in the cases foreseen by the Constitution or the applicable law.