Decisions from the review session held on 30 June 2020
30.06.2020In the review session held on 30 June 2020, the Constitutional Court of the Republic of Kosovo reviewed and decided on the Referrals: 1. KO 203/19 and 2. KO 219/19. Below you can read the brief summaries of the Court’s 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. Judgment
Case: KO 203/19
Applicant: The Ombudsperson
The subject matter of the Referral was the constitutional review of Articles 2 (paragraph 3), 5 (paragraph 1, subparagraph 1. 2 and paragraph 2), 10 (paragraphs 1 and 2), 11, 14 (paragraph 5), 15 (paragraphs 4 and 6), 17 (paragraph 7), 31 (paragraph 3), 32 (paragraph 5), 33 (paragraph 5), 34 (paragraph 16), 35 (paragraph 6), 37 (paragraph 5), 38 (paragraph 7), 39 (paragraph 11), 40 (paragraph 12), 41 (paragraph 6), 42 (paragraphs 10 and 11), 43 (paragraph 13), 44 (paragraph 4), 48 (paragraph 9), 49 (paragraph 6), 52 (paragraph 7), 54 (paragraph 6), 67 (paragraph 11), 68 (paragraph 8), 70 (paragraph 8), 71 (paragraph 8), 75, 80 (paragraph 4), 83 (paragraph 18) and 85 of the Law No. 06/L-114 on Public Officials, published in the Official Gazette of the Republic of Kosovo, on 11 March 2019, and which entered into force six (6) months after its publication in the Official Gazette. The Applicant alleged that the challenged Articles are not compliance with paragraph 2 of Article 132 [Role and Competencies of the Ombudsperson] of the Constitution of the Republic of Kosovo, and other constitutional provisions governing the status of independent constitutional institutions. In his Referral, the Applicant also requested the Constitutional Court to impose an interim measure for the immediate suspension of the challenged provisions, which the Court approved after the first hearing on 19 November 2019, until 28 February 2020 and which was twice extended until 28 April 2020 respectively 30 June 2020.
The Referral was based on paragraph 2, sub-paragraph 1 of Article 113 [Jurisdiction and Authorized Parties] and paragraph 2 of Article 116 [Legal Effect of Decisions] of the Constitution, Articles 22, 27, 29 and 30 of Law No. 03/L-121 on the Constitutional Court, and Rules 32, 56, and 57 of the Rules of Procedure of the Constitutional Court.
Conclusions
1. In assessing the constitutionality of the Law no. 06 / L-114 on Public Officials the Court, unanimously decides: (i) that the referral is admissible for review on merits; (ii) that Articles 2 (paragraph 3), 4 (paragraphs 3 and 4), 5 (paragraph 1, subparagraph 1. 2 and paragraph 2), 10 (paragraphs 1 and 2), 11, 14 (paragraph 5), 15 (paragraphs 4 and 6), 17 (paragraph 7), 31 (paragraph 3), 32 (paragraph 5), 33 (paragraph 5), 34 (paragraph 16), 35 (paragraph 6), 37 (paragraph 5), 38 (paragraph 7), 39 (paragraph 11), 40 (paragraph 12), 41 (paragraph 6), 42 (paragraphs 10 and 11), 43 (paragraph 13), 44 (paragraph 4), 48 (paragraph 9), 49 (paragraph 6), 52 (paragraph 7), 54 (paragraph 6), 67 (paragraph 11), 68 (paragraph 8), 70 (paragraph 8), 71 (paragraph 7), 75, 80 (paragraph 4), 83 (paragraph 18) and 85 of the Law no. 06 / L-114 on Public Officials, are not in compliance with Articles 4, 7, 102, 108, 109, 110, 110, 115, 132, 136, 139, 140 and 141 of the Constitution; (iii) The challenged law does not apply in relation to: Kosovo Judicial Council; Kosovo Prosecutorial Council; the Constitutional Court; the Ombudsperson Institution; Auditor -General of Kosovo; Central Election Commission; the Central Bank of Kosovo and the Independent Media Commission, while it violates their functional and organizational independence guaranteed by the Constitution; (iv) the challenged law does not infringe the provisions of the Constitution in relation to the Kosovo Forensic Agency and the Kosovo Police Civil Servants; (v) the Assembly of the Republic of Kosovo must take the necessary actions to supplement and amend the Law No. 06 / L-114 on Public Officials in accordance with the findings of this Judgment, as regards the officials of the institutions indicated under point (iii); and (vi) in order to repeal the interim measure
2. The constitutional matter involved in the said referral is the compliance with the Constitution of the challenged Law voted by the Assembly, respectively the assessment whether it is in accordance with the principle of “separation of powers”, “independence of independent constitutional institutions” and the principle of equality before the law, guaranteed by the above-mentioned articles of the Constitution. The Court examined the constitutionality of the challenged law only in relation to the above-mentioned state institutions as the Applicant did not challenge the constitutionality of the challenged law in its entirety and in relation to all public officials regulated by the challenged law.
3. With regard to the institutions of the justice system set out in Chapter VII [Justice System] of the Constitution, the Court found that the challenged law gives the Government broad powers to manage and supervise civil servants of public administration, including civil servants of the institutions of the Judicial power, such as officials of the Kosovo Judicial Council and Kosovo Prosecutorial Council. Moreover, the challenged law gives the Government the power to issue a range of sub-legal to further regulate important matters concerning civil servants such as recruitment, appointment, promotion, working hours, and classification of positions, disciplinary violations, which in essence also affect the functioning, classification of positions but also the systematization and organizational structure of the relevant institutions of the Judiciary and Independent Institutions. The Assembly, although through the challenged Law has given the Government the power to manage the civil service system in all institutions, including the Justice System, it has determined that the Presidency of the Assembly is entitled to issue sub-legal acts regarding the Assembly servants.
4. By this legislative solution it is ensured that the Government, respectively the Executive authority will not have “interference” competencies in the management of the employees of the Assembly, respectively the Legislature; whereas for the Judicial power and Independent Institutions no guarantee is foreseen to prevent “interferences” in the management of their employees. The Court has ascertained that the Assembly has failed to determine the same exception also for the employees of the Justice System so as to ensure the separation of powers not only in terms of judges and prosecutors but also in relation to their support staff, just as it had done for the servants of the Assembly and the Government.
5. Therefore, the Court assessed that, by not including civil servants of the institutions set out in Chapter VII [Justice System] in the exceptions of Article 4 [Civil Servants with Special Status], paragraphs 3 and 4 of the challenged Law, the challenged law violates the principle of the separation of powers guaranteed by Articles 4 and 7 of the Constitution as well as the independence of the institutions of the justice system set out in Chapter VII [Justice System] of the Constitution, namely the Kosovo Judicial Council and the Kosovo Prosecutorial Council. Consequently, the Court found that the challenged law is not in compliance with the Constitution in relation to these institutions and does not apply to these institutions while it violates their institutional and organizational independence guaranteed by the Constitution.
6. As regards the Applicant’s allegations regarding the violation of the independence of independent constitutional institutions set out in Chapter VIII [Constitutional Court] and XII [Independent Institutions] of the Constitution, the Court refers to Independent Institutions expressly listed in Chapter XII [Independent Institutions], specifically in Articles 132-135 [Role and Competencies of the Ombudsperson], 136-138 [Auditor-General of Kosovo], 139 [Central Election Commission], 140 [Central Bank of Kosovo] and 141 [Independent Media Commission], as well as with respect to the Court as set out in Chapter VIII [Constitutional Court] of the Constitution. In this respect, the Independent Constitutional Institutions based on the Constitution are authorized to decide on their internal organization, including the regulation of certain specifics related to their personnel, in order to ensure their functional and organizational independence. Therefore, the Court emphasized that according to the Constitution and relevant laws, as well as the case law of this Court, elaborated in details in the Judgment, the personnel of independent constitutional institutions are subject to the rules of civil service as long as they do not violate their independence. The regulations which create direct “interference” in their functional and organizational independence are incompatible with the Constitution and the principles and values proclaimed therein.
7. In this respect, the Court assessed that the Assembly, authorizing the Government through the challenged Law to issue sub-legal acts which regulate the issue of employment, including the classification of positions, criteria for recruitment and other issues in the Independent Constitutional Institutions, without taking into account their independence – violates the essence of the independence of the Independent Constitutional Institutions guaranteed by Article 115 of Chapter VIII of the Constitution and Articles 132, 136, 139, 140, 141 of Chapter XII of the Constitution, as State public authorities separated from the Legislature, the Executive authority, and the regular Judiciary. Therefore, the Court finds that the above-mentioned violations make the disputed Law inconsistent with the Constitution in relation to the Judiciary and Independent Institutions and that it cannot be applied to them as long as it does not respect their institutional and organizational independence.
8. As to the other institutions in respect of which the Applicant lodged a claim with the Court, namely KFA officers and Kosovo Police Civil Servants, the Court stated that the Independent Agencies established under Article 142 of the Constitution do not have the same status with that of the Independent Constitutional Institutions explicitly mentioned in Chapter XII of the Constitution. This is because unlike other institutions referred to in Chapter XII of the Constitution, “Independent Agencies” provided by Article 142 of the Constitution “are institutions established by the Assembly, based on the respective laws, which regulate their establishment, operation and competencies.” So, unlike the fact that the Assembly can create and shut down “by law” Independent Agencies; The Assembly can never “shut down” by law any of the five independent institutions mentioned above. This constitutes the main difference between the Independent Institutions referred to in Chapter XII of the Constitution.
9. In this respect, the Court found that both the employees of the Kosovo Forensic Agency and the civil servants of the Kosovo Police are not in an equivalent position with the KIA officials; police officers and the officers of the police inspectorate; and Kosovo customs officials, and consequently it is not necessary to treat them in the same way. This is due to the fact that the principle of unequal treatment is expressed only in cases where such treatment is done for the same or analogous situations. In this case, we cannot talk about an unequal treatment because the KFA officials and the civil servants of the Kosovo Police are not in the same or similar position or analogous to the officials in relation to whom they are (self) compared. Consequently, the Court considers that the challenged law, including KFA employees and Kosovo Police civil servants in the field of application of the challenged Law, does not violate the principle of equality guaranteed by Article 24 of the Constitution in relation to Article 14 of the ECHR.
10. In the end, the Court concludes that it is not necessary for the challenged Law to be repealed in its entirety. In the circumstances of the present case, the analysis led to a conclusion that the non-implementation of the Contested Law in relation to the institutions mentioned above, does not make the Law unenforceable in practice. Consequently, the Court found that the Assembly is obliged to take the necessary actions to supplement and amend the Law No. 06 /L-114 on Public Officials in accordance with the findings of the present Judgment, in relation to the employees of the institutions specifically defined in the Enacting Clause of the Judgment. Until the supplementation and amendment of the Law No.06/L-114 on Public Officials by the Assembly, the provisions of this Law shall apply only insofar as it does not infringe the functional and organizational independence of the Independent Institutions specifically referred to in the Enacting Clause of this Judgment. While in relation to all other institutions, Law No. 06/L-114 on Public Officials shall apply from the entry into force of the present Judgment.
FOR THESE REASONS
The Constitutional Court of the Republic of Kosovo, pursuant to Article 113.2 of the Constitution, Articles 20 and 27 of the Law and Rules 56, 57 and 59 of the Rules of Procedure, on 30 June 2020, unanimously
DECIDES
I. TO DECLARE the Referral admissible;
II. TO HOLD that Articles 2 (paragraph 3), 4 (paragraphs 3 and 4), 5 (paragraph 1, subparagraph 1. 2 and paragraph 2), 10 (paragraphs 1 and 2), 11, 14 (paragraph 5), 15 ( paragraphs 4 and 6), 17 (paragraph 7), 31 (paragraph 3), 32 (paragraph 5), 33 (paragraph 5), 34 (paragraph 16), 35 (paragraph 6), 37 (paragraph 5), 38 ( paragraph 7), 39 (paragraph 11), 40 (paragraph 12), 41 (paragraph 6), 42 (paragraphs 10 and 11), 43 (paragraph 13), 44 (paragraph 4), 48 (paragraph 9), 49 ( paragraph 6), 52 (paragraph 7), 54 (paragraph 6), 67 (paragraph 11), 68 (paragraph 8), 70 (paragraph 8), 71 (paragraph 7), 75, 80 (paragraph 4), 83 ( paragraph 18) and 85 of the Law No. 06 / L-114 on Public Officials, are not in compliance with: Articles 4 [Form of Government and Separation of Power]; 7 [Values]; 102 [General Principles of the Judicial System]; 108 [Kosovo Judicial Council]; 109[State Prosecutor]; 110[Kosovo Prosecutorial Council]; 115[Organization of the Constitutional Court]; and Articles 132 [Role and Competencies of the Ombudsperson]; 136 [Auditor-General of Kosovo]; 139 [Central Election Commission]; 140 [Central Bank of Kosovo] and 141 [Independent Media Commission] of Chapter XII [Independent Institutions] of the Constitution;
III. TO HOLD that the Law No. 06/L-114 on Public Officials does not apply in relation to: the Kosovo Judicial Council; Kosovo Prosecutorial Council; the Constitutional Court; Ombudsperson Institution; Auditor- General; Central Election Commission; the Central Bank of Kosovo and the Independent Media Commission, as long as it violates their functional and organizational independence guaranteed by the Constitution;
IV. TO HOLD that the Law No.06/L-114 on Public Officials does not violate the provisions of the Constitution in relation to the Kosovo Forensic Agency and the civil servants of the Kosovo Police;
V. TO HOLD that the Assembly of the Republic of Kosovo must take the necessary actions to supplement and amend the Law No. 06/L-114 on Public Officials in accordance with the findings of this Judgment, with regard to the employees of the institutions defined in point III of this enacting clause;
VI. TO REQUEST from the Assembly of the Republic of Kosovo, in accordance with Rule 66 (4) of the Rules of Procedure, to notify the Constitutional Court of the Republic of Kosovo, regarding the measures taken to implement this Judgment;
VII. TO REPEAL the decision on imposition of the interim measure of 19 November 2019 and the decisions extending the interim measure of 26 February 2020 and 22 April 2020;
VIII. TO NOTIFY this Judgment to the Parties;
2. Judgment
Case: KO 219/19
Applicant: The Ombudsperson
The subject matter of the Referral was the constitutional review of Law No. 06/L-111 on Salaries in Public Sector, published in the Official Gazette on 1 March 2019, and which entered into force nine (9) months after its publication in the Official Gazette. In his Referral, the Applicant also requested the Constitutional Court to impose an interim measure for “immediate suspension” of the challenged Law, which request was approved by the Court after its first review on 12 December 2019, with a duration until 30 March 2020 and after second review on 30 March 2020 with a duration until 30 June 2020.
Conclusions
1. In assessing the constitutionality of Law No. 06/L-111 on Salaries in Public Sector, the Court decided: (i) unanimously that the Referral is admissible for review of merits; (ii) with majority that the challenged Law, in its entirety, is not in compliance with Articles 4, 7, 102, 103, 108, 109, 110 of Chapter VII, Article 115 of Chapter VIII of the Constitution; as well as Articles 132, 136, 139 and 141 of Chapter XII of the Constitution; (iii) to hold that, it is not necessary to consider other Applicant’s allegations after the declaration of the challenged Law in its entirety as unconstitutional in terms of violation of the principles of “separation of powers” and “legal certainty”; (iv) to repeal the interim measure.
2. The constitutional issue that the Judgment in question contained was the compliance with the Constitution of the challenged Law voted by the Assembly, namely the assessment whether the latter is in compliance with the principle of “separation of powers” and that of the “legal certainty” guaranteed by the abovementioned Articles of the Constitution.
3. The Court concluded that the challenged Law contained a number of serious problems at the constitutional level that could be summarized as follows: (i) the challenged Law itself contradicts its purpose to “harmonize” salaries at the level of the entire public sector – by making arbitrary and unreasonable exceptions for some institutions, among others the Kosovo Security Force, the Kosovo Intelligence Agency, the Privatization Agency of Kosovo, the Central Bank of Kosovo, and the Assembly itself; (ii) the challenged Law completely excludes the independence of the Judicial power, by not leaving any self-regulatory competence for issues related to the implementation of “functional, organizational and budgetary” independence; (iii) the challenged Law, although emphasizing that the salaries are regulated by this Law, has reduced the legal regulation for many issues at the level of sub-legal acts, giving the possibility of sub-legal regulation only to the Executive and the Legislative; (iv) out of a total of eighteen (18) competencies to issue sub-legal acts, sixteen (16) are for the Government and two (2) for the Assembly, while no self-regulatory competence for the Judiciary or Independent Institutions; (v) the Judiciary and Independent Institutions have not been given any self-regulatory competence through which they could enjoy their “institutional, organizational, structural and budgetary” independence in relation to internal organization and their staff; (vi) only one (1) of the eighteen (18) sub-legal acts that had to be approved within the ninth (9) monthly period of vacatio legis has been approved, namely by 1 December 2019; (vii) as confirmed by the data of the Ministry of Finance and Transfers, for about 42% of the positions it is not possible to decipher the salary because the latter will finally be determined through the relevant classifications with sub-legal acts of the Government; (viii) as confirmed by the data of the Ministry of Finance and Transfers the “additional budget cost” of the challenged Law “is not part of the budget projections 2019-2021”; (ix) as confirmed by the data of the Ministry of Finance and Transfers, even if the challenged Law entered into force today, it could not be fully implemented in the absence of the sub-legal acts.
4. Regarding Article 1 of the challenged Law, which provided for the purpose of comprehensive harmonization of salaries of the entire public sector, the Court noted that the legislator, without any justification and in an arbitrary manner had excluded from this Law, among others, the KIA (Kosovo Intelligence Agency) and the KSF (Kosovo Security Force), CBK and PAK. In other parts of the Law, the legislator had granted other exceptions, direct or completely unstressed, for the employees of the Assembly, the political staff of the Assembly and the deputies of the Assembly. The Court concluded that the exceptions granted by the challenged Law clearly contradict the very purpose of comprehensive “harmonization” for which, it is said, to have been issued. Consequently, the exceptions made were considered to be against the very purpose of the Law and create unreasonable, unproven and arbitrary differentiations.
5. With regard to Article 3 (in conjunction with Article 24) of the challenged Law, the Court found that at least two (2) of the six (6) fundamental principles on which the challenged Law is said to have been guided were not followed and respected, namely the one of “predictability” and “transparency”. The first provided that the salary “cannot be reduced, except in an extraordinary situation of financial difficulties and only on the basis of law”; while the second provided that “the procedure for determining the salary, [will] be transparent to the public”. Specifically, regarding the principle of predictability, the Court emphasized that the approach of the legislator to consider as important the principle of “predictability” only for the future, not for the present, has resulted in neglect of the rights of persons who have been negatively affected by the Law on Salaries. This is because according to the new legal regulation of the Assembly, it turns out that for the future, the legislator considers that salaries can be reduced only in extraordinary situations and financial difficulties; while none of the reduced salaries in the public sector by the challenged Law have been justified on the basis of any “extraordinary situation” or “financial difficulty”. The Government, in the Draft Law has foreseen such a guarantee for non-reduction of salaries (Article 27 of the initial Draft Law), but the Assembly had eliminated that guarantee with the amendment. Further, the Court does not consider that the principle of “transparency” was applied when about 42% of positions currently receiving salaries from the state budget, still cannot decipher where they are positioned and how much their salary would be with a new Law on Salaries.
6. Regarding Articles 4, 5 and 12 of the challenged Law, the Court noted that the Assembly, as one of the three classical powers of the government of the Republic of Kosovo, has provided that all matters relating to the allowances and remunerations of its employees, regular and political staff, and the deputies themselves are to be regulated by “special acts” approved by the Presidency of the Assembly and that such an exception, according to the legislator, “is made based on the nature and specific working conditions of the Assembly of the Republic of Kosovo”. The Court considered that such exceptions provided for only one power – represent one of the most serious constitutional problems of the Law in question. The very selective exclusion of only one power and non-respect of the constitutional guarantees of other powers, completely ignoring the Judiciary and Independent Institutions is a legislative solution that does not coincide with the values and principles of the Constitution, especially the principle of separation and balance of powers.
7. The Court also noted the fact that the challenged Law gives sixteen (16) special competencies to the Government to regulate certain matters through sub-legal acts and after consultation with the relevant ministries, including issues affecting the Judiciary and Independent Institutions in terms of their functional, organizational, structural and budgetary independence (See Articles 5.4; 5.5; 6.3; 6.4; 7.5; 8.3; 9.5; 14.4; 15.4; 17.4; 18.2; 19.4; 20.5; 21.6; 21.8; 22.5; 25.3; 26.2; 27.2 of the challenged Law). In this regard, the Court noted that in addition to the Assembly, namely the Legislative, the only other power authorized to regulate certain matters by sub-legal acts is the Government, namely the Executive. The only power, to which the independence has been completely ignored by any kind of specific regulation that would take into account the “nature and specific conditions” of its work and independence – is the power of the Judiciary. The same can be said also for the Independent Institutions referred to in Chapters VIII and XII of the Constitution. This meant that all regulatory competencies through sub-legal acts remained in the hands of the Executive and the Legislative – as two of the powers that have in fact drafted, namely adopted this legal initiative through the vote in the Assembly.
8. The Court held that the legal regulation, with the complete exception of the self-regulatory competencies of the Judiciary, has undoubtedly created an imbalance in the separation of powers, which the spirit and letter of the Constitution does not aspire to. Such a legal regulation, if confirmed as constitutional, would have the potential to create “interference”, of the Executive power towards the power of Judiciary and “dependence” and “subordination” of the the power of Judiciary towards the Executive, because the former would have to depend on the will of the second in terms of internal regulations for staff and functional, organizational, budgetary and structural aspects of work. Such a legal regulation is in open conflict with the Constitution.
9. Regarding Article 31 (in conjunction with Article 34) of the challenged Law which provided that all sub-legal acts provided by this Law must be “approved within 9 months after publication in the Official Gazette” and that the challenged Law “enters into force 9 months after publication in the Official Gazette”, the Court noted that only one (1) of the eighteen (18) sub-legal acts that should have been approved by 1 December 2019, namely within the period that the legislator left as vacatio legis for preparation for the implementation of the challenged Law. In the answers submitted to the Court, the Ministry of Finance and Transfers has acknowledged that the challenged Law, even if it entered into force today, it could not be implemented in entirety due to the absence of sub-legal acts. The lack of the latter, according to the explanation of the Ministry of Finance and Transfers, has made it impossible for it to respond to about 42% of the positions paid from the state budget because without the approval of sub-legal acts it is not known how much would be the salaries for a number of positions that are currently paid from the state budget. All this careless legislative process, without any doubt, leads to an unacceptable situation of legal uncertainty that can in no way be compatible with the Constitution and its values and principles of predictability, legal certainty and the rule of law.
10. Regarding Article 32 of the challenged Law, which provides that in case of entry into force of the challenged Law any change in the structure, components or levels of salary coefficients is prohibited, the Court noted some serious conceptual and practical problems to the detriment of the Judiciary and Independent Institutions. This is due to the fact that, if this provision were declared constitutional, it would mean that whenever the Judiciary and other Independent Institutions need to create a new position within their organizational chart, or change the internal organizational structure depending on the need that may arise in the future – they should address the Government to ask for permission and approval to create a new position and to seek permission and approval to change the internal organizational structure. The challenged Law in the final decision-making chain, left the Government as a power that must “approve” any proposal of the Judiciary. The Court found that this legal regulation, without any doubt, in a flagrant way goes contrary to the notion of “institutional, functional and organizational” independence of the Judiciary and Independent Institutions. As such, it is unacceptable and contrary to the Constitution and the key principle of separation of powers as a selected constitutional model for the governance of the Republic of the country.
11. Regarding Article 33 of the challenged Law, the Court noted that inter alia, some of the specific articles of the organic laws of the Judiciary that previously regulated the issue of salaries of the judiciary in general, of the Constitutional Court and of the presidents of both Councils, the Judicial and the Prosecutorial, have been expressly repealed. However, Article 28 of the challenged Law provides that the latter shall not be applied for the functionaries until 31 December 2022. The Court noted two evident and fundamental problems in this regard.
12. The first concerned the the vacuum and legal contradiction created by the challenged Law. That is for fact that at the legal moment that the challenged Law would enter into force, Article 33 of this Law would repeal all relevant norms which currently regulate the salaries of the Judiciary, of the Constitutional Court, the chairpersons of the Judicial and Prosecutorial Councils (see points 1.4; 1.6; 1.7; 1.8 of Article 33 of the challenged Law) and for whose salaries at the same time the Law states that they will be saved for the respective period. The question arises as to whether the articles of the organic laws governing the current salaries would be repealed upon the entry into force of the challenged Law – on the basis of which Law these special functionaries would receive a salary. What salary would be preserved for them when the provisions governing their old salary – which was supposed to be maintained – would be repealed. By this careless legal regulation, it turns out that the legislator would have left the functionaries in question without any legal regulation. The second had to do with the concept of saving the salaries of the Judiciary only until the end of 2022, and then the drastic reduction of salaries after that date. Such a scenario is not considered to contribute to a guarantee of an independent Judiciary. On the contrary, such a legislative solution would place undesirable pressure on the Judiciary versus Legislative and Executive power.
13. To reach these conclusions, the Court took into account the following aspects.
14. Regarding the Assembly, the Court emphasized that the legislative power has the main constitutional competence for legislation at the national level. In terms of the circumstances of the present case, it was therefore indisputable the authorization of the Assembly, that in exercising its competence for “adoption of laws”, it regulates salaries in the public sector according to a certain public policy voted by the Assembly itself. The latter has full authority to choose the best and most appropriate modality, which it considers that in terms of public policy fits the salary system for the Republic of Kosovo. The only limitation that the Assembly has in the legislation is to respect the procedures of lawmaking and to vote laws that are in accordance with the Constitution and the values and principles proclaimed there.
15. During the analysis of the challenged Law, the Court deliberately focused on arbitrary salary “reductions” and not on the “increase” of salaries, due to the fact that the Assembly during the drafting of laws should have taken care of the rights of persons whose salaries are reduced. Reasons for salary reductions should be many times more sustainable than the reasons for salary increases because, the former reduces an existing right while the latter add to an existing right. Having said that, the Court emphasizes that the Legislator has the right, after this Judgment, to take any kind of step to increase salaries in the public sector, so as to meet any public policy goal for salary increases in certain sectors. It is not the duty of the Court to state where and how salary increases should be made. The possible modalities for this issue remain entirely at the discretion of the Assembly and the Government.
16. Regarding the role of the Constitutional Court in the abstract assessment of the constitutionality of the challenged Law, it was clarified that in all cases where a Law of the Assembly is challenged before the Constitutional Court by the authorized parties, the focus of assessment is always on the respect of the constitutional norms and human rights and freedoms – and never on the assessment of the selection of public policy that has led to the adoption of a particular law. The competence of the Court in this case was to assess, in abstracto, whether the challenged Law is constitutional or not, and depending on the answer – to seal its constitutionality or repeal it as unconstitutional. The second was necessary in this case.
17. At the level of principles set by the Constitution, the Court emphasized that among the fundamental values embodied in the Constitution on which the constitutional order of the Republic of Kosovo is based, among others, are the “separation of powers” and the “rule of law”. The functioning of the democratic state of the Republic of Kosovo is based on the constitutional principle of separation of powers and checks and balance among them. Based on Article 4 of the Constitution regarding the form of government and separation of power: (i) The Assembly exercises legislative power; (ii) The Government is responsible for implementation of laws and state policies; and (iii) The judicial power is unique and independent and is exercised by courts. These three powers constitute the classic triangle of separation of powers. The relationship between the “three powers” is based on the principle of separation of powers and checks and balance among them. The separation of power as a fundamental principle of the highest constitutional level is embodied in the spirit of the Constitution of the country and as such is non-negotiable.
18. To each of the three classical branches of separation of powers, the Constitution has dedicated a separate chapter. In all three of these chapters [on Legislative; Executive and Judicial power], the general principles as well as the duties and responsibilities of each power are foreseen. In addition, it provides for the mechanisms of checks and balance among them that form the core of how these powers should check and balance each other without creating any unconstitutional “interference”, “dependence” or “subordination” among them that potentially could affect the independence of one or the other power. The logic of the principle of separation of powers is that an influence of a power on the other during the process of their institutional interaction should by no means create an interfering or dependence or subordination relationship that could result in the loss of independence to act as a free and unaffected power. This is the essence of the constitutional balance that the Constitution has established and which is required to be maintained in every interactive instance between independent powers.
19. In addition, the Court emphasized that the Constitution has recognized a special and important status and role in the conduct of public state duties also to the Independent Institutions referred to in Chapter XII of the Constitution, which have been singled out as such, not without reason. This chapter includes: (i) The Ombudsperson; (ii) the Auditor-General of Kosovo; (iii) Central Election Commission; (iv) Central Bank of Kosovo; (v) Independent Media Commission; and (vi) Independent Agencies.
20. Unlike other institutions referred to in Chapter XII of the Constitution, “Independent Agencies” provided for in Article 142 of the Constitution “are institutions established by the Assembly based on the respective laws that regulate their establishment, operation and competencies”. This distinction needs to be identified as such, for the reason that the five Independent Institutions referred to in items (i), (ii), (iii), (iv) and (v) have been established as such in the case of voting and entry into force of the existing Constitution by the legislator, namely the Assembly; whereas, the Independent Agencies are not created as such in the case of voting of the existing Constitution – but are agencies for the creation of which the Constitution gives the Assembly the right to create and extinguish them, by law, depending on the needs that may arise in public and social life. Unlike the fact that the Assembly can create and extinguish “by law” Independent Agencies; the Assembly can never extinguish “by law” any of the five independent institutions mentioned above. This is the main difference between Independent Institutions referred to in Chapter XII of the Constitution – which should be considered as such whenever actions affecting the Independent Agencies are taken – which differ from other Independent Institutions.
21. The key conclusions reached by the Court after analyzing the answers of the Forum of the Venice Commission and the Opinions of the Venice Commission and the case law of the various constitutional and supreme courts, were as follows: (i) there is no single possible system for regulating salaries in the public sector and that there is no internationally recognized principle governing the regulation of “equal pay for equal work”; (ii) most countries regulate salaries through different laws and at the same time apply different methods by regulating this issue either through special laws for specific sectors or through some more concentrated legal regulation; (iii) the Assembly, as a legislative body, has the competence and organic right to issue any kind of legislation on the regulation of salaries in the public sector provided that it complies with the Constitution; (iv) the principle of separation of power and the balance between Legislative, Executive and Judicial power does not imply the isolation of powers and the absence of mutual dependence; however, the latter also means avoiding situations in which unconstitutional “interference”, “dependence” or “subordination” can be created between independent powers; (v) the independence of the judiciary, as one of the branches of power, implies that the judiciary is free from external pressure, and is not subject to influence by the executive branch; (vi) sufficient resources are essential to guarantee judicial independence from other state institutions and private parties – so that the judiciary can perform its duties with integrity and effectiveness; (vii) the reduction of the budget by the executive is an example of how the resources of the judiciary can be put under excessive and undesirable pressure; (viii) there is no rule that creates absolute guarantee that the salaries in the public sector cannot be reduced per se – but that reduction of salaries must be justified; (ix) the reduction of the salary of the judiciary may occur only under conditions of a pronounced economic and financial crisis and which, moreover, must be officially recognized as such; (x) sacrifices in times of crisis [since the emphasis on reduction is always when there are crises] resulting in reduction of salaries that are not universal and are not evenly distributed among all citizens, in proportion to their individual financial ability – are not considered to be compatible with the concepts of distribution of burden among beneficiaries of salaries in a state;
22. Finally, the Court also noted several important issues.
23. In case of new legislation in this field, the Government as the proposer of laws and the Assembly as the voter of the laws are obliged to take into account the principles emphasized in this Judgment and other Judgments from the case law of the Constitutional Court in interpreting the respective articles of the Constitution. The “institutional, functional, organizational and budgetary independence” of the Judiciary and Independent Institutions must be recognized, and any legal initiative must respect this independence (See Judgments KO73/16 and KO171/18).
24. Finding the aforementioned violations made the challenged Law in its entirety unconstitutional. The Court analyzed very carefully the possibility of partial repeal of the challenged Law. However, in the circumstances of the present case such a solution, in contrast to the circumstances of the Law No. 06/L-114 on Public Officials which was partially repealed, was not possible for two reasons. First, because the constitutional violations evidenced in the challenged Law are of such serious gravity that the latter affect the core of the functioning of government in the Republic of Kosovo – causing an imbalance in the separation of power to the detriment of the Judiciary and Independent Institutions. Second, because the challenged Law does not provide an opportunity to repeal only a few provisions and only a few items of Annexes 1 and 2 because any kind of repeal would make the Law inapplicable in practice. And, in cases where the analysis leads to the conclusion that the Law with partial repeal becomes inapplicable with the remaining articles in force as constitutional, the Court is obliged to repeal the Law in its entirety.
25. The Court also emphasized that all powers without exception, have a constitutional obligation to cooperate with each other and perform public duties for the common public good and in the best interest of all citizens of the Republic of Kosovo. These public duties also include the obligation of each power to take care during the performance of its constitutional duties for respect of the independence of the power to which it is creating an “interference”. For example, the Government and the Assembly, despite having the competence to propose and vote on laws, which could also affect the sphere of the Judiciary, as a third power; they [the Government and the Assembly] must ensure that during the drafting of their proposals and until their finalization by the vote of the Assembly, the constitutional independence of the sister power, namely the Judiciary, is preserved. The Government and the Assembly must show the same care and sensitivity to other state actors, which the Constitution has provided with constitutional guarantees of functional, organizational, structural and budgetary independence. Guaranteeing and prior ensuring of the constitutionality of the initiatives of the Government and the Assembly should be the permanent and inseparable aspect of the legal creativity of these two powers.
FOR THESE REASONS
The Constitutional Court, in accordance with Articles 113.1 and 2 and 116.2 of the Constitution, Articles 22, 27, 29 and 30 of the Law and in accordance with Rule 59 (1) of the Rules of Procedure, on 30 June 2020,
DECIDES
I. TO DECLARE, unanimously, the Referral admissible;
II. TO DECLARE with majority that Law No. 06/L-111 on Salaries in Public Sector, in its entirety, is not in compliance with: Articles 4 [Form of Government and Separation of Power]; 7 [Values]; 102 [General Principles of the Judicial System]; 103 [Organization and Jurisdiction of Courts] paragraph 1; 108 [Kosovo Judicial Council]; 109 [State Prosecutor]; 110 [Kosovo Prosecutorial Council], 115 [Organization of the Constitutional Court] and Articles 132 [Role and Competencies of the Ombudsperson]; 136 [Auditor-General of Kosovo]; 139 [Central Election Commission]; and 141 [Independent Media Commission] of the Chapter XII [Independent Institutions] of the Constitution;
III. TO DECLARE invalid, in its entirety, Law No. 06/L-111 on Salaries in Public Sector;
IV. TO REPEAL the decision on the imposition of the interim measure of 12 December 2019 as well as the decision on the extension of the interim measure of 30 March 2020;
V. TO NOTIFY this Judgment to the Parties;
(Disclaimer: This is an unofficial translation provided for informational purposes only)