Constitutional Court

KI01/18, Applicant: Gani Dreshaj – the Alliance for the Future of Kosovo (AAK), Constitutional review of Judgment A.A. –U.ZH No. 64/2017 of the Supreme Court of Kosovo, of 26 December 2017

 KI01/18, Judgment adopted on 23 January 2019, published on 4 February 2019

Keywords: individual referral, interim measure, second round of elections, election law, active electoral rights, passive electoral rights, voter lists, post-election rights, exhaustion of legal remedies, municipal elections

The Applicants requested the Court to assess the constitutionality of the decisions of the CEC, ECAP and Supreme Court, which, allegedly, violated their rights guaranteed by Article 45 [Freedom of Election and Participation] of the Constitution of the Republic of Kosovo in conjunction with Article 3 of Protocol no. 1 to the ECHR. The Applicants essentially complained that because of not counting 52 (fifty-two) voters’ votes in the second round of elections, valid for the election of the Mayor of Istog, the right of their candidate (Gani Dreshaj) to be elected has been violated, as guaranteed by Article 45 of the Constitution in conjunction with Article 3 of Protocol no. 1 to the ECHR.

The Court first, based on its practice on municipal election disputes, found that one of the Applicants (Gani Dreshaj) did not exhaust all legal remedies as established in Article 113 (7) of the Constitution. The Court also found that the second Applicant (AAK) exhausted all legal remedies and that it would consider the allegations on merits.

The Court notes that the present case addresses the issues of interconnection of active election rights with passive election rights, update of election lists between the two rounds of elections and disputes of counting the votes in the count centers that matched the post-election period.

The Court, based on the ECtHR consolidated case law, decided to assess whether the challenged decisions of the CEC, ECAP and the Supreme Court could withstand the ECtHR test that determines whether those decisions: ( i) are in compliance and provided for by applicable law, (ii) whether they are proportionate, and (iii) whether they are arbitrary or unreasonable. However, the Court first held that the legal framework regulating the election right in the Republic of Kosovo is not subject to constitutional review; and that its assessment is limited only within the framework of the allegations raised in the present case.

The Court further found that: (i) the non-update of voter lists was a fact known by all participants in the electoral race-including the Applicants; and (ii) the counting of 52 (fifty-two) voters’ votes does not have such an extent to guarantee the vote of a certain group of voters – moreover, when it is taken into account that none of those voters had complained to the competent bodies because of not counting their votes.

The Court, by providing a global assessment of all central issues of the present case, considered that the challenged decisions of the CEC, ECAP and Supreme Court are in compliance and are provided for by the applicable election law, are proportionate – and are not arbitrary or unreasonable.

Therefore, the Court concluded that the challenged decisions of ECAP and of the Supreme Court are in compliance with Article 45 [Freedom of Election and Participation] of the Constitution in conjunction with Article 3 of Protocol no. 1 to the ECHR. The Court also rejected the Applicants’ request for interim measure.