Constitutional Court

KI48/18, Request for constitutional review of Decision AA. No. 52/2017 of the Supreme Court of the Republic of Kosovo of 25 November 2017 and Judgment A.A. U.ZH. No. 62/2017 of the Supreme Court of the Republic of Kosovo of 7 December 2017

 KI 48/18, Applicants Arban Abrashi and the Democratic League of Kosovo (LDK)

Judgment of 23 January 2019

Keywords: election dispute, local elections, mayor of municipality, freedom of election and participation, judicial protection of rights

Referral KI48/18 was submitted by Mr. Arban Abrashi and the Democratic League of Kosovo. Mr. Arban Abrashi was a candidate for Mayor of the Municipality in the local elections of 2017 and before this Court appeared in the capacity of an individual, namely a natural person; whereas, the Democratic League of Kosovo was the political entity through which Mr. Arban Abrashi competed for Mayor of the Municipality of Prishtina and before this Court appeared as a political entity, namely a legal person.

The Applicants, in essence, alleged that the Supreme Court, but also the ECAP, in the proceedings for the review of their complaints and appeals failed to provide judicial protection of their rights guaranteed by Article 54 [Judicial Protection of Rights] of the Constitution and, accordingly, the decisions of these public authorities have resulted in the violation of their rights for freedom of election and participation as guaranteed by Article 45 [Freedom of Election and Participation] of the Constitution.

The Constitutional Court declared the Referral admissible for review on merits after finding that the Applicants are authorized parties; challenge decisions of public authorities; have exhausted legal remedies as elaborated in the Judgment; have specified the fundamental rights and freedoms which have allegedly been violated; have submitted the Referral within the deadline; the Referral is not manifestly ill-founded; and the Court found no other admissibility requirement which was not fulfilled. As a result, the Referral passed the admissibility test and was declared admissible for review on merits.

Before considering the merits of the case, the Court addressed the issue of its jurisdiction pertaining to electoral disputes. In this respect, the Court clarified its constitutional competence as it pertains to individual referrals related to electoral disputes, emphasizing that, in this respect, the Court is limited to paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, namely, to assessing whether an act of a public authority may have violated the respective fundamental rights and freedoms of an individual, after the exhaustion of all legal remedies as provided by law.

The Court then dealt with all the Applicants’ allegations separately and in their entirety, applying into this assessment: (i) the constitutional guarantees related to the challenged rights, namely Articles 45 and 54 of the Constitution; (ii) the underlying principles resulting from the European heritage of the democratic elections summarized by the Venice Commission; and (iii) the case-law of the European Court of Human Rights (ECtHR).

Following the application of these guarantees, principles and tests established through the ECtHR case-law, the Court unanimously found that the challenged decisions of the Supreme Court did not violate the Applicants’ rights to judicial protection of rights guaranteed by Article 54 of the Constitution and the right to a legal remedy guaranteed by Article 32 of the Constitution in conjunction with the right to an effective remedy guaranteed by Article 13 of the European Convention on Human Rights [ECHR], because in the circumstances of the present case, the Supreme Court has correctly assessed the issues pertaining to: (i) confirmation/cancelation of the election results; (ii) declaring as out of time the Applicants’ allegations pertaining to irregularities on the election day, and which were submitted to the ECAP for the first time after the announcement of the final election results; and (iii) invalid and blank ballots, after the ECAP investigated the election material in the contested polling stations and did not find that “the final election results were affected”. In addition, the decisions of the Supreme Court were “sufficiently reasoned” pertaining to the Applicants’ allegations and are in conformity with the standards established through the case-law of the ECtHR and the Venice Commission as to the reasoning of decisions in electoral disputes. The findings of the Supreme Court, are in compliance with the constitutional guarantees, the relevant case-law of the ECtHR and the basic principles of the Venice Commission as it pertains to “an effective system of appeal” as an integral part of the “procedural guarantees”, which is a fundamental condition for the implementation of the five underlying principles pertaining to the qualities of the vote.

The Court unanimously held the challenged decisions of the Supreme Court have not violated the Applicants’ rights pertaining to the freedom of election and participation guaranteed by Article 45 of the Constitution in conjunction with the right to free elections guaranteed by Article 3 of Protocol nr. 1 of the ECHR because, in the circumstances of the present case, these decisions have not been rendered in contradiction with: (i) any of the conditions for the implementation of the underlying principles on the qualities of the vote, as guaranteed by the Constitution, the election laws and the Code of Good Practice of the Venice Commission; (ii) any of the “procedural guarantees” for the implementation of the “free suffrage” and “equal suffrage” principles; (iii) the “principle of transparency” in electoral disputes as established by the ECtHR case-law and the underlying principles of the Venice Commission; and (iv) the ECtHR case-law in the context of the “post-electoral rights”.

The Court also unanimously rejected the Applicant’s request for a hearing, because it did not consider that there is any ambiguity about “evidence or law”. The Court found that the documents contained in the Referral are sufficient to establish the merits of this case.

Therefore, at the end, the Court unanimously held that: (i) Decision [AA. No. 52/2017] of 25 November 2017 of the Supreme Court was not rendered in violation of the fundamental rights and freedoms of the political entity LDK, and is in compliance with the fundamental rights and freedoms guaranteed by Articles 45 and 54 of the Constitution; and that (ii) Judgment [A.A.U.ZH. No. 62/2017] of 7 December 2017 of the Supreme Court was not rendered in violation of the fundamental rights and freedoms of Mr. Arban Abrashi and of political entity LDK, and is in compliance with their fundamental rights and freedoms guaranteed by Articles 45 and 54 of the Constitution.