Decisions from the review session held on 17 December 2020

In the review session held on 17 December 2020, the Constitutional Court of the Republic of Kosovo reviewed the Referrals: 1. KI 193/19; 2. KI 18/20; 3. KO 56/20; 4. KI 157/20 and 5. KI 166/20. Below you can read the brief summaries of decisions (full texts of decisions 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 193/19
Applicant: Salih Mekaj

The subject matter of the Referral was the constitutional review of the Judgment [Pml. No. 36/2019], of the Supreme Court of Kosovo of 5 June 2019, whereby the Applicant alleged violation of his rights guaranteed by Article 31 [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 (the ECHR).
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 and Article 6.1 (Right to a fair trial) of the ECHR;

III. TO DECLARE Judgment Pml. No. 36/2019 of the Supreme Court, of 5 June 2019 invalid, and REMANDS the latter for reconsideration, in compliance with the Judgment of this Court;

IV. TO ORDER the Supreme Court to notify the Court, in accordance with Rule 66 (5) of the Rules of Procedure, about the measures taken to implement the Judgment of the Court, no later than 21 June 2021;

2. Case: KI 18/20
Applicant: Fatmir Hoti

The subject matter of the Referral was the constitutional review of the Judgment [PML. No. 316/2019] of the Supreme Court of Kosovo of 22 November 2019, in conjunction with the Decision [PN. No. 794/2019] of the Court of Appeals of Kosovo of 23 July 2019 and the Decision [PK. No. 278/19], of the Basic Court in Gjakova of 3 July 2019. The Applicant alleged that the challenged decision violated his rights and freedoms guaranteed by Articles: 22 [Direct Applicability of International Agreements and Instruments], 31 [Right to Fair and Impartial Trial] and 53 [Interpretation of Human Rights Provisions] 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 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 (3) (b) and 59 (2) of the Rules of Procedure, the Referral be declared inadmissible.

3. Case: KO 56/20
Applicant: Rexhep Selimi and 29 other deputies of the Assembly of the Republic of Kosovo

The subject matter of the Referral was the constitutional review of “the action of the President of the Republic of Kosovo, of 23 March 2020, expressed through a press conference for non-observance and non-implementation of the decision of the Government of the Republic of Kosovo”. The Applicants alleged that the “action” of the President of the Republic of Kosovo expressed through his statement at the press conference, constitutes a serious violation of the Constitution, namely paragraph 2 of Article 84 [Competencies of the President], paragraphs 3 and 4 of Article 4 [Form of Government and Separation of Power], paragraph 1 of Article 7 [Values], paragraphs 1 and 2 and paragraph 4 of Article 16 [Supremacy of the Constitution], paragraph 4 of Article 93 [Competencies of the Government], Article 97 [ Responsibilities] and paragraph 9 of Article 65 [Competencies of the Assembly of Kosovo] of the Constitution of the Republic of Kosovo.
The Referral was based on paragraph 6 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals], 44 [Accuracy of the Referral] and 45 [Deadlines] of Law No. 03/L-121 on the Constitutional Court, as well as Rules 32 [Filing of Referrals and Replies] and 75 [Referral pursuant to Article 113.6 of the Constitution and Articles 44 and 45 of the Law] of the Rules of Procedure of the Constitutional Court.

CONCLUSIONS

The Applicants, on 31 March 2020 submitted their Referral to the Court, claiming that the “action” of the President of the Republic of Kosovo expressed through his Statement at the press conference constituted a serious violation of the Constitution, namely paragraph 2 of Article 84 [Competencies of the President], paragraphs 3 and 4 of Article 4 [Form of Government and Separation of Power], paragraph 1 of Article 7 [Values], paragraphs 1 and 2 and paragraph 4 of Article 16 [Supremacy of the Constitution], paragraph 4 of Article 93 [Competencies of the Government], Article 97 [Responsibilities] and paragraph 9 of Article 65 [Competencies of the Assembly of Kosovo] of the Constitution of the Republic of Kosovo.

The Court, immediately after the registration of the Referral, conducted the necessary proceedings for notifying the parties in accordance with the legal provisions in force. As a result, the Court accepted the President’s response to the Applicants’ allegations, as well as the Applicants’ comments on the President’s response.
However, before the Court could finally decide on the Applicants’ Referral, which alleged a serious violation of the Constitution by the President, on 5 November 2020, the President of the Republic of Kosovo resigned from the position of President. In this context, paragraph 5 of Rule 75 of the Rules of Procedure also stipulates that: “The Court shall order stay of proceedings initiated pursuant to this Rule in the event that before issuing its decision, the President of the Republic has resigned or has otherwise terminated his/her mandate.”

As a result of this new circumstance and based on the fact that the Referral was submitted pursuant to Article 113, paragraph 6 of the Constitution, in which case the Applicants challenged the constitutionality of the President’s action through his Statement given on 23 March 2020 and consequently, is related to the request for finding a serious violation that could result in the dismissal of the President, while the President no longer exercises this duty, the Court based on the circumstances created after the submission of the Referral by the Applicants, as a result of the resignation of the President and in accordance with Article 113.6 of the Constitution, Articles 44 and 45 of the Law on the Constitutional Court, and Rules 59 and 75 (5) of the Rules of Procedure, held that there was no longer a case before it and consequently, unanimously decided to terminate the proceedings of further review of the Referral.

FOR THESE REASONS

– The Court, in accordance with paragraph 6 of Article 113 of the Constitution, Articles 44 and 45 of the Law on the Constitutional Court and Rule 59 and paragraph 5 of Rule 75 of the Rules of Procedure, unanimously:

DECIDES

I. TO TERMINATE the procedure for reviewing the Applicants’ Referral;
II. TO NOTIFY this Decision to the parties;

4. Case: KI 157/20
Applicant: Naser Peci, as the alleged representative of person S. B.

The subject matter of the Referral was the constitutional review of the decision of the Court of Appeals of Kosovo, which allegedly violated the rights of the person S.B, guaranteed by 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.
The Referral was based on 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 35 (5) and 59 (3) of the Rules of Procedure, the Referral be rejected.

5. Case: KI 166/20
Applicant: Ministry of Labor and Social Welfare

The subject matter of the Referral was the constitutional review of the Judgment [ARJ-UZVP. No. 34/2020] of the Supreme Court of Kosovo, of 6 May 2020, which, according to the Applicant’s allegations, violated the rights and freedoms guaranteed by Articles: 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 102 [General Principles of the Judicial System] of the Constitution of the Republic of Kosovo.
The Referral was based on Article 21.4 and 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.