Decisions from the review session held on 10 December 2020
10.12.2020In the review session held on 10 December 2020, the Constitutional Court of the Republic of Kosovo reviewed the Referrals: 1. KI 207/19; 2. KI 145/19, KI 146/19, KI 147/19, KI 149/19, KI 150/19, KI 151/19, KI 152/19, KI 153/19, KI 154/19, KI 155/19, KI 156/19, KI 157/19 and KI 159/19; 3. KI 224/19; 4. KI 227/19; 5. KI 228/19; 6. KI 65/20 and KI 66/20; 7. KI 119/20; 8. KI 135/20 and 9. KI 144/20. Below you can read the brief summaries of the Court’s decisions (full texts of resolutions and judgments will be submitted to the parties, will be published on the Court’s website and in the Official Gazette during the following days):
1. Case: KI 207/19
Applicant: The Social Democratic Initiative, New Kosovo Alliance and
Justice Party
The subject matter of the Referral was the constitutional review of the judgments of the Supreme Court of Kosovo [AAUZH. No. 20/2019], of 30 October 2019 and [AAUZH. No. 21/2019], of 5 November 2019, which, according to the Applicant’s allegations, violate the rights guaranteed by Article 7 [Rule of Law], paragraph 1 of Article 31 [Right to Fair and Impartial Trial] and Article 45 [Freedom of Election and Participation] of the Constitution of the Republic of Kosovo, in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights. The Applicant also requested the imposition of an interim measure which would prohibit certification “[…] of the elections [of 6 October 2019] until a final decision […] regarding the main request” of the case in question.
The Referral was based on paragraph 4 of Article 21 [General Principles] and paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
CONCLUSIONS
1. Referral KI207/19 was submitted by the Coalition “NISMA-AKR-PD” after the early elections for the Assembly of 6 October 2019. In particular, this case concerned the “Voting from Abroad” conducted by citizens of the Republic of Kosovo by mail from various countries outside Kosovo.
2. The constitutional issue contained in the Referral in question is the compliance with the Constitution and the ECHR of the two challenged decisions of the Supreme Court, namely the Judgment [AAUZH. No. 20/2019] of 30 October 2019 and the Judgment [AAUZH. No. 21/2019] of 5 November 2019. Specifically, if the decision of the Supreme Court that the votes from abroad should be counted despite the fact that they had arrived at the CEC after the deadline of twenty-four (24) hours from the day of elections specified in Article 96.2 of the LGE in conjunction with Article 4.4. of Election Rule no. 03/2013, was contrary to: (i) Article 7 [Values] of the Constitution; (ii) paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the ECHR; and, (iii) Article 45 [Freedom of Election and Participation] of the Constitution in conjunction with Article 3 (Right to free elections), Protocol No. 1 of the ECHR.
3. According to the facts of the case, the ECAP by Decisions [A. No. 375-2/2019 of 28 October 2019; and A. No. 381/2019 of 3 November 2019] concluded that the CEC, according to the LGE, should not count the packages received after the legal deadline nor include them in the final result. Meanwhile, afterwards, the Supreme Court annulled the decision-making of the ECAP and found that although the fact that the votes arrived after the legal deadline remains, the CEC should count those votes and include them in the final result. The Supreme Court considered that the legal norm that determines the deadline, namely Article 96.2 of the LGE and Article 4.4 of the Election Rule No. 03/2013 is a legal norm in “collision” with Article 3 of Protocol No. 1 of the ECHR and that consequently the CEC should be ordered to count the packages in question despite the fact that they arrived after the legal deadline. After the CEC implemented the challenged decisions of the Supreme Court, the election result certified by the CEC on 27 November 2019, includes also the votes counted from the contested packages that had arrived after the legal deadline.
4. The Applicants also alleged that the Supreme Court, contrary to the Constitution, decided to apply directly the international instruments contained in Article 22 of the Constitution and not Article 96.2 of the LGE and Article 4.4. of Election Rule No. 03/2013. They also alleged that the regular courts do not have the right to directly apply the constitutional norms and/or international instruments provided for in Article 22 of the Constitution, as well as to interpret the legal norms in harmony and according to the obligations arising from the constitutional norms, as in such cases there is a binding obligation under Article 113.8 of the Constitution to refer the matter to the Constitutional Court whenever the question of the constitutionality of legal norms is raised.
5. The Court, while dealing with the Applicant’s allegations, initially found that according to the interpretation of Article 102.3 of the Constitution, in conjunction with Article 112.1 of the Constitution and according to the case law of the Constitutional Court, the latter considers that the right and obligation to apply and interpret the Constitution, is recognized to all courts of the Republic of Kosovo and all public authorities in the Republic of Kosovo.
6. However, the Court strongly reiterated that the competence to “hold” the unconstitutionality of a legal norm and to “repeal” a legal norm as incompatible with the Constitution is the exclusive competence of the Constitutional Court. Thus, despite the fact that the Constitution recognizes the competence of regular courts to interpret a norm of legal rank in line with a norm of constitutional rank and/or the direct application of a norm of constitutional rank, this does not mean that regular courts can ascertain or declare a legal norm as a norm contrary to the Constitution or the ECHR. Such a competence, of ascertaining unconstitutionality and repeal of a legal norm, is not foreseen by the Constitution as a competence of the regular courts. Such a right, the Constitution has assigned exclusively to the Constitutional Court which can, after the submission of a referral by an authorized party under Article 113 of the Constitution, repeal a legal norm that is contrary to the Constitution and determine the effects of such a repeal.
7. As to the compatibility of the challenged decisions of the Supreme Court with Article 45 of the Constitution in conjunction with Article 3 of Protocol No. 1 of the ECHR, taking into account the general principles regarding the voting abroad established by the ECtHR, the Court noted that although the time for decision-making in electoral disputes is relatively short and that the right to a fair trial under Article 31 of the Constitution and Article 6 of the ECHR do not apply to electoral disputes, this does not mean that decisions related to electoral disputes should not be sufficiently reasoned. According to the ECtHR, the procedure for reviewing electoral disputes must include a “sufficiently reasoned decision” in order to “prevent the abuse of power by the relevant decision-making authority”.
8. Following the application of these principles, the Court found that the reasoning of the Supreme Court and the conclusions reached on the basis of that reasoning were arbitrary and did not meet any of the criteria of a sufficiently reasoned court decision. This is due to the fact that the Supreme Court did not apply any relevant test of the court review nor did it elaborate on any of the following issues that were relevant and necessary to be clarified in the circumstances of the present case: (i) what is meant by the “principle of universal suffrage” which the Supreme Court referred to, how that principle relates to the right to vote from abroad and how the latter was violated in the circumstances of the present case; (ii) what are the obligations that Article 3 of Protocol no. 1 of the ECHR imposes on states regarding outside voting; and (iii) what exactly makes the deadline set out in Article 96.2 of the LGE in conjunction with Article 4.4. of Election Rule 03/2013 to be a legal norm in collision with Article 3 of Protocol no. 1 of the ECHR.
9. In this regard, the Court noted and found that the Supreme Court failed to establish, in any way, how the ECAP decision-making was erroneous and why the ECAP line of reasoning should be replaced by a completely different line that was not in compliance with the LGE and the election practice so far. Consequently, the Court concluded that the Supreme Court did not provide sufficient legal and constitutional reasoning and that its decision-making in the circumstances of the present case was arbitrary and, therefore, contrary to the guarantees of Article 45 of the Constitution in conjunction with Article 3 of the Protocol no. 1 of the ECHR.
Furthermore, as regards the compliance of the legal norm which required that outside voting must arrive at the CEC twenty-four (24) hours before election day, in order for them to be counted, the Court concluded that this restriction on the right to vote: (1) was a restriction provided by law; (2) there was a legitimate purpose aimed to be achieved by that restriction; and (3) there is a relationship of proportionality between the restriction of the right in question and the legitimate purpose aimed to be achieves. The Court also found that the time limit set out in Article 96.2 of the LGE in conjunction with Article 4.4. of Election Rule no. 03/2013, was not arbitrary and did not affect the impossibility of free expression of the will of the people regarding their representatives in the Assembly and as such was in compliance with Article 45 of the Constitution and Article 3 of Protocol No. 1 of the ECHR.
10. In conclusion, the Court unanimously found that: (i) the Referral is admissible for review on merits; (ii) the challenged decisions of the Supreme Court are not in compliance with Article 3 of Protocol No. 1 of the ECHR in conjunction with Article 45 of the Constitution, and as such the Court declares them invalid; (iii) ECAP decisions are in compliance with Article 3 of Protocol no. 1 of the ECHR in conjunction with Article 45 of the Constitution; (iv) the legal deadline set by the Assembly for arrival of the votes from abroad through Article 96.2 of the LGE in conjunction with Article 4.4. of Election Rule no. 03/2013 was a restriction of the right to vote which was in compliance with Article 55 of the Constitution because the latter: was provided by law; had a legitimate purpose to be achieved by that restriction; and there was a relation of proportionality between the restriction of that right and the legitimate aim which was intended to be achieved by that restriction; and that, in the circumstances of the present case (v) the restriction of the right to vote (as a relative right and not an absolute right) by term has not been arbitrary and has not affected the impossibility of free expression of the will of the people with respect to their representatives in the Assembly.
11. With regard to the effects of this Judgment, the Court clarified that although its finding that the challenged decisions of the Supreme Court are not in compliance with Article 3 of Protocol no. 1 of the ECHR in conjunction with Article 45 of the Constitution has no retroactive effect on the announced election result in the circumstances of the present case, according to the reasons given; however, the Judgment in this case produces at least four important effects, as follows: (1) the clarification of the rights and obligations of the regular courts in cases where they are confronted with norms of legal rank which claim to be in collision with norms of constitutional rank; (2) the repeal of the two challenged decisions of the Supreme Court and the upholding of the two decisions of the ECAP so that, while the Assembly of the Republic of Kosovo upholds Article 96.2 of the LGE, all votes that reach the CEC after the legal deadline must be declared invalid votes and must not be counted or included in the final election result; (3) clarification that in the circumstances of the present case there was no collision between the norm of the legal rank and that of the constitutional rank and that, in this respect, the Supreme Court declared the collision in question in an arbitrary manner, exceeding its constitutional powers and without sufficient and adequate reasoning; and that (4) the finding of a violation enables the Applicant to consider the use of other legal remedies available for the further exercise of its rights in accordance with the findings of this Judgment.
FOR THESE REASONS
– The Court, pursuant to Article 113.7 of the Constitution, Article 20 of the Law on the Constitutional Court and Rule 59 (1) of the Rules of Procedure:
DECIDES
I. TO DECLARE the Referral admissible;
II. TO HOLD that Judgments [A.A.U.ZH. No. 20/2019 of 30 October 2019; and A.A.U.ZH. No. 21/2019 of 5 November 2019] of the Supreme Court of the Republic of Kosovo, are not in compliance with Article 3 of Protocol no. 1 of the European Convention on Human Rights in conjunction with Article 45 of the Constitution of the Republic of Kosovo;
III. TO HOLD that the Decisions [A. No. 375-2/2019 of 28 October 2019; and A. No. 381/2019 of 3 November 2019] of the Election Complaints and Appeals Panel are in compliance with Article 3 of Protocol no. 1 of the European Convention on Human Rights in conjunction with Article 45 of the Constitution of the Republic of Kosovo;
IV. TO REJECT the request for interim measure;
2. Case: KI145/19, KI146/19, KI147/19, KI149/19, KI150/19, KI151/19, KI152/19, KI153/19, KI154/19, KI155/19, KI156/19, KI157/19 and KI159/19
Applicant: Et-hem Bokshi and others
The subject matter of the Referral was the constitutional review of the Judgment [AC-I-13-0181-A0008] of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on the Privatization Agency of Kosovo Related Matters of 29 August 2019, whereby the Applicants’ fundamental rights and freedoms guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 46 [Protection of Property] of the Constitution of the Republic of Kosovo and Articles 6 (Right to a fair trial) and 1 (Protection of Property) of Protocol no. 1 of the European Convention on Human Rights have allegedly been violated.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, Article 20 and 47 of the Law on the Constitutional Court and Rule 59 (1) (a) of the Rules of Procedure,
DECIDES
I. TO DECLARE the Referral admissible;
II. TO HOLD that there has been a violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights;
III. TO DECLARE the Judgment [AC-I-13-0181-A0008] of 29 August 2019 of the Appellate Panel of the Special Chamber of the Supreme Court invalid;
IV. TO REMAND the case for reconsideration to the Appellate Panel of the Special Chamber of the Supreme Court, in compliance with the findings of this Judgment;
V. TO ORDER the Appellate Panel of the Special Chamber of the Supreme Court to notify the Court, in accordance with Rule 66 (5) of the Rules of Procedure, by 14 June 2021, about the measures taken to implement the Judgment of the Court;
3. Case: KI 224/19
Applicant: Islam Krasniqi
The subject matter of the Referral was the constitutional review of the Decision [AC-I-19-0114] of the Appellate Panel of the Special Chamber of the Supreme Court, of 19 September 2019, on the Privatization Agency of Kosovo Related Matters. The Applicant alleged that the challenged decision violated his rights and freedoms guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 46 [Protection of Property] and 54 [Judicial Protection of Rights] of the Constitution of the Republic of Kosovo.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, in accordance with Article 113.7 of the Constitution, Article 20 of the Law on the Constitutional Court and Rule 59 (1) of the Rules of Procedure,
DECIDES
I. TO DECLARE the Referral admissible;
II. TO HOLD that there has been a violation of Article 31.1 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6.1 [Right to a fair trial] of the ECHR;
III. TO DECLARE Decision AC-I-19-0114 of the Appellate Panel, of 19 September 2019 invalid and REMANDS the latter for retrial, in accordance with the Judgment of the Court;
IV. TO ORDER the Appellate Panel of the SCSC to notify the Court, in compliance with Rule 66 (5) of the Rules of Procedure, about the measures taken to implement the Judgment of the Court no later than 15 June 2021;
4. Case: KI 227/19
Applicant: N.T. “Spahia Petrol”
The subject matter of the Referral was the constitutional review of the Judgment [ARJ. UZVP. No. 94/2019], of the Supreme Court of Kosovo of 1 August 2019, in conjunction with the Judgment [AA. No. 501/2018] of the Court of Appeals of Kosovo, of 16 April 2019 and the Judgment [A. No. 548/16] of the Department for Administrative Matters of the Basic Court in Prishtina, of 29 May 2018. The Applicant alleged that the challenged decision violated his fundamental rights and freedoms guaranteed by Articles: 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 32 [Right to Legal Remedies] of the Constitution of the Republic of Kosovo and Article 6 (Right to a fair trial) of the European Convention on Human Rights.
The Referral was based on paragraph 4 of Article 21 [General Principles] and paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, in accordance with Articles 21.4 and 113.7 of the Constitution, Articles 20 and 47 of the Law on the Constitutional Court and Rule 59 (1) (a) of the Rules of Procedure,
DECIDES
I. TO DECLARE the Referral admissible;
II. TO HOLD that there has been a violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 (Right to a fair trial) of the European Convention on Human Rights;
III. TO DECLARE the Judgment [ARJ.UZVP. No. 94/2019] of the Supreme Court, of 1 August 2019 invalid;
IV. TO REMAND the Judgment [ARJ.UZVP. No. 94/2019] of the Supreme Court of 1 August 2019 for reconsideration in accordance with the Judgment of this Court;
V. TO ORDER the Supreme Court to notify the Court, in accordance with Rule 66 (5) of the Rules of Procedure, by 14 June 2021, about the measures taken to implement the Judgment of the Court;
VI. TO REMAIN seized of the matter in compliance with this order;
5. Case: KI 228/19
Applicant: Limak Kosovo International Airport J. S. C. “Adem Jashari”
The subject matter of the Referral was the constitutional review of the Judgment [Rev. No. 268/2019] of the Supreme Court of Kosovo of 4 September 2018, whereby the Applicant alleged that his rights guaranteed by Articles: 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [E Right to Legal Remedies] and 46 [Protection of Property] of the Constitution of the Republic of Kosovo, as well as Article 6 (Right to a fair trial) and Article 1 of Protocol No. 1 of the European Convention on Human Rights have been violated.
The Referral was based on paragraph 4 of Article 21 [General Principles] and paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, Article 20 of the Law on the Constitutional Court and Rules 39 (2) and 59 (2) of the Rules of Procedure, the Referral be declared inadmissible.
6. Case: KI 65/20 and KI 66/20
Applicant: Jovica Stanisavljević and Stojmirka Stanisavljević
The subject matter of the Referral was the constitutional review of the Judgment [AC-I-16-0101-A22], of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on the Privatization Agency of Kosovo Related Matters, of 14 February 2020. The Applicants alleged that the challenged decision violated their rights and freedoms guaranteed by Articles: 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 49 [Right to Work and Exercise Profession] of the Constitution of the Republic of Kosovo, as well as Article 6 (Right to a fair trial), Article 14 (Prohibition of discrimination) and Article 1 of Protocol no. 12 (General prohibition of discrimination) of the European Convention on Human Rights.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals], 47 [Individual Requests], 48 [Accuracy of the Referral] and 49 [Deadlines] of Law No. 03/L-121 on the Constitutional Court, as well as Rules 32 [Filing of Referrals and Replies] and 40.1 (Joinder and Severance of Referrals) of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, Article 20 of the Law on the Constitutional Court and Rules 39 (2) and 59 (2) of the Rules of Procedure, the Referral be declared inadmissible.
7. Case: KI 119/20
Applicant: Lufti Beselica
The subject matter of the Referral was the constitutional review of the Judgment [AC-I.-17-0496-A001] of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on the Privatization Agency of Kosovo Related Matters, of 24 June 2020. The Applicant alleged that this Judgment violated his fundamental rights and freedoms guaranteed by Article 7 [Values], Article 31 [Right to Fair and Impartial Trial] and Article 46 [Protection of Property] of the Constitution of the Republic of Kosovo.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, Article 20 of the Law on the Constitutional Court and Rules 39 (2) and 59 (2) of the Rules of Procedure, the Referral be declared inadmissible.
8. Case: KI 135/20
Applicant: Hava Behxheti
The subject matter of the Referral was the constitutional review of the Judgment [ARJ-UZVP. no. 122/2019] of the Supreme Court of Kosovo of 18 November 2019, whereby the Applicant alleged that her rights guaranteed by Articles 3 and 24 [Equality Before the Law], Article 22 [Direct Applicability of International Agreements and Instruments] and Article 31.2 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, in conjunction with Article 6.1 [Right to a fair trial] of the European Convention on Human Rights have been violated.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, Article 20 of the Law on the Constitutional Court and Rules 39 (2) and 59 (2) of the Rules of Procedure, the Referral be declared inadmissible.
9. Case: KI 144/20
Applicant: Qerim Qerimi
The subject matter of the Referral was the constitutional review of the Judgment [Rev. No. 214/2020] of the Supreme Court of Kosovo, of 13 July 2020, by which the Applicant alleged that his fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo and Article 6 (Right to a fair trial) of the European Convention on Human Rights have been violated.
The Referral was based on Article 113.7 of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, Article 20 of the Law on the Constitutional Court and Rules 39 (2) and 59 (2) of the Rules of Procedure, the Referral be declared inadmissible.