Constitutional Court

KI27/20 Applicant: Vetëvendosje! Movement, Constitutional review of Judgment [A.A-U.ZH. No. 16.2019] of 10 October 2019 of the Supreme Court of Kosovo

KI27/20 Judgment of 22 July 2020, published on 07 September 2020

Keywords: Individual referral, admissible referral, election campaign, freedom of expression, limitations on human rights

Person E.B had filed a complaint with the Election Complaints and Appeals Panel (hereinafter: the ECAP) against the Applicant, alleging that on 4 October 2019, the Applicant’s candidate for deputy M.B. for the elections of 6 October 2020, had published/distributed a video recording on the social network Facebook, where, among other things, in the video recording i) the premises of the Kosovo Police building were used; and ii) his photo was used without his permission, desecrating, according to E.B., his name, dignity and position as director of the Kosovo Police. He alleged that these actions violated the election rules.

The ECAP by Decision [No. 233/2019], approved as grounded the complaint of the party E.B., and imposed on the Applicant a fine in the amount of 9,500.00 (nine thousand five hundred) euro, due to: i) publication in the election campaign spot of the Kosovo Police facility in Prishtina; and ii) the involvement of the private person E.B., without his permission in the electoral promotional activity in violation of Article 33 [Prohibited Actions by Political Entities] of the Law on General Elections. The above-mentioned decision of the ECAP was also confirmed by the Supreme Court by Judgment [No. A.A-U.ZH. No. 16/2019], which rejected the Applicant’s appeal as ungrounded.

In this regard, the Applicant requested from the Constitutional Court the constitutional review of Judgment [AA-U.ZH. nr. 16/2019] of 10 October 2019 of the Supreme Court, by which it was alleged that it was fined in violation of the Law on General Elections, among other things, because the spot of the election campaign was published outside the election campaign. In this regard, the Applicant alleged violation of its rights guaranteed by Articles 7 [Values], 21 [General Principles], 22 [Direct Applicability of International Agreements and Instruments], 24 [Equality Before the Law], and 40 [Freedom of Expression] of the Constitution as well as Articles 10 [Freedom of expression] and 14 [Prohibition of discrimination] of the European Convention on Human Rights (hereinafter: the ECHR) and Article 7 of the Universal Declaration of Human Rights.

The Constitutional Court, after finding that the Applicant’s Referral meets the admissibility criteria, during the assessment of the merits of the case, initially assessed the Applicant’s main allegation related to the freedom of expression guaranteed by Article 40 of the Constitution and Article 10 of the ECHR. In this regard, the Constitutional Court elaborated on the general principles of freedom of expression set out in the case law of the European Court of Human Rights and in applying these principles in the present case found that the restriction of freedom of expression alleged by the Applicant was provided by law, had the legitimate aim of protecting the rights of others and guaranteeing a fair and just electoral process, and fulfilled the principle of proportionality. Therefore, the Court found that the Applicant’s allegations that in the present case the right to freedom of expression, guaranteed by Article 40 of the Constitution and Article 10 of the ECHR has been violated.  In addition, the Court also assessed the allegations of violation of other rights alleged by the Applicant and found that the Judgment [AA-U.ZH. No. 16.2019] of 10 October 2019 of the Supreme Court, has not violated the rights established in Articles 7 [Values], 21 [General Principles], 22 [Direct Applicability of International Agreements and Instruments], 24 [Equality Before the Law] of the Constitution, Article 14 [Prohibition of discrimination] of the ECHR, and Article 7 of the Universal Declaration of Human Rights.