Decisions published during December 2024

14.01.2025

In December 2024, the Constitutional Court:

• reviewed three (3) cases;
• made decisions for two (2) cases:
• published eighteen (18) decisions;

During this period, on the website of the Constitutional Court have been published (i) six (6) Judgments and (ii) twelve (12) Resolutions on Inadmissibility.

Judgments
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I.

1. KI11/24
Applicant: Zekë Jasiqi
Published on: 27 December 2024
Request for constitutional review of the Decision [PN. no. 1420/23] of the Court of Appeals of the Republic of Kosovo, of 15 November 2023

The Court assessed the constitutionality of the Decision [PN. no. 1420/23] of the Court of Appeals of the Republic of Kosovo, of 15 November 2023. The Judgment initially clarifies the circumstances of the present case related to the criminal report [2018-KE-262] filed by the Serious Crimes Prosecutor’s Office in Prishtina against the Applicant as well as persons I.O., I.B, A.T., M.M., R.H.,E. L., and S. N., on the grounds of the reasonable suspicion that they have committed the criminal offense (i) “usury” under Article 343 (Usury) in conjunction with Article 31 (Co-perpetration) of Criminal Code no. 04/082 of the Republic of Kosovo; (ii) “extortion” under Article 340 (Extortion) of the Criminal Code; and (iii) “fraud” under Article 335 (Fraud) of the Criminal Code against the injured party F.D. The Applicant appointed lawyer A.Q as his defense counsel in the criminal proceedings, who was also the authorized defense counsel of the person A.T. According to the clarifications given, during the first hearing of the criminal case in the Basic Court regarding the indictment against the Applicant, the State Prosecutor, in addition to reading the indictment, requested the Basic Court to determine whether the lawyer A.Q. may be a defense counsel of the Applicant, given that the same lawyer also appears as a defense counsel of the person A.T., in the relevant criminal proceedings. The Basic Court reviewed the request of the Prosecution, rendering a Decision whereby it rejected the possibility of lawyer A.Q. being the defense counsel of the applicant, emphasizing that paragraph 1 of Article 54 (Limits of Representation by Defense Counsel) of the Criminal Procedure Code of the Republic of Kosovo stipulates that: “in criminal proceedings a defense counsel is not allowed to represent two or more defendants in the same case”.

The Applicant filed an appeal against the aforementioned decision of the Basic Court with the Court of Appeals, which rejected the appeal on the grounds that the first instance decision was based on paragraph 1 of Article 54 (Limits of Representation by Defense Counsel) of the Criminal Procedure Code. The Applicant before the Court challenged the aforementioned decisions of the Basic Court and the Court of Appeals, claiming, in essence, that they violated his right to free choice of the defense counsel, a right guaranteed by paragraph 5 of Article 30 [Rights of the Accused] of the Constitution, as well as that his right to a reasoned court decision, guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution. In assessing the Applicant’s allegations, the Court (i) elaborated the general principles of the right to legal counsel of his choosing, according to the case-law of the European Court of Human Rights, including the principles and criteria developed by it, in order to proceed with(ii) with application of the latter to the circumstances of the present case. The Judgment, applying the principles and criteria established by the case-law of the ECtHR, namely that (i) the right to a defense counsel is not an absolute right; (ii) the limitation of this right, namely the limitation of the choice of defense counsel, is subject to the provisions applied in the relevant legal system, regarding who may be a defense counsel in the proceedings; and (iii) there must be relevant and sufficient reasons, which determine that such a limitation of this right is in fact in the interests of justice, inter alia, emphasizes that (i) the limitation of the choice of defense counsel for representation, in the circumstances of the present case, is provided for in paragraph 1 of Article 54 (Limits of Representation by Defense Counsel) of the Criminal Procedure Code, a limitation which refers to the fact that a defense counsel cannot represent two defendants in criminal proceedings; and (ii) that the limitation of this right is in the interests of justice.

Furthermore, and according to the clarifications given, the Judgment clarifies that (i) the Applicant was represented by the lawyer T.R. in an early stage of the criminal proceedings; (ii) the Applicant did not revoke the authorization of the lawyer T.R. at the initial hearing, but he chose another lawyer as a defense in continuation of the criminal proceedings; and (iii) the applicant had a representative/lawyer during the conduct of the procedure. In addition, the regular courts prevented the Applicant from chosing the lawyer A.Q. as a second defense counsel, referring to the limitations of Article (Limits of Representation by Defense Counsel) of the Criminal Procedure Code and that the restriction in question refers exclusively to the above-mentioned lawyer, while the Applicant has the right to choose another lawyer in the course of the criminal proceedings, as long as this does not constitute an action that is contrary to Article 54 (Limits of Representation by Defense Counsel) of the Criminal Procedure Code. Therefore, and according to the clarifications given, the contested decisions of the regular courts for rejecting the representation of the applicant by the lawyer A.Q. as the second defense counsel in the criminal proceedings, in the present circumstances of this case, do not constitute a violation of paragraph 5 of Article 30 [Rights of the Accused] of the Constitution, in conjunction with paragraph 3 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

You can read the notification regarding the Judgment by clicking here

Meanwhile, you can read the full text of the Judgment and its summary in the two official languages of the Republic of Kosovo and in English, by clicking here

2. KI105/24
Applicant: Imrije Kadriu
Published on: 27 December 2024
Request for constitutional review of the Judgment [Ac. no. 2125/22] of the Court of Appeals of the Republic of Kosovo, of 23 February 2024

The Court assessed the constitutionality of the Judgment [Ac. no. 2125/22] of the Court of Appeals of the Republic of Kosovo, of 23 February 2024. The Judgment first clarifies that the circumstances of the present case are related to the Applicant’s claim filed with the Basic Court in Ferizaj against the Municipality of Shtime, in which she demanded the payment of the difference in additional salary for promotion and advancement in career. The Basic Court in Ferizaj partially approved the Applicant’s statement of claim as grounded, approving her statement of claim for compensation of the unpaid difference in salary for licensing – promotion, but rejecting the remaining part of her statement of claim for compensation on behalf of advancement in career, with the reasoning that it failed to establish by any material evidence that the Applicant had advanced in her career, was promoted or qualified during the period from 18 April 2017 to 20 May 2019. Against the Judgment of the Basic Court in Ferizaj, the Applicant submitted an appeal before the Court of Appeals of Kosovo, alleging a violation of the provisions of the Contested Procedure and erroneous determination of the factual and legal situation, against which the Municipality of Shtime subsequently submitted a response to the appeal. The Court of Appeals of Kosovo, through its judgment, rejected as unfounded the Applicant’s appeal, and upheld the judgment of the Basic Court in Ferizaj, establishing that no material evidence has proven the fulfillment of the legal requirement for compensation on behalf of advancement in career, pursuant to item 1.5, paragraph 1 of Article 7 (Licensing) of the Collective Contract, namely that the Applicant has failed to prove that she advanced in her career, was promoted or qualified during the period from 18 April 2017 to 20 May 2019.

The Judgment further clarifies that the Applicant, in her referral submitted to the Court, argued that the contested Judgment of the Court of Appeal of Kosovo has infringed her rights guaranteed by Article 31 [Right to a Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, as a result of (i) the violation of the principle of equality of arms and procedural adversariality, given that the Court of Appeals of Kosovo did not provide her with the response to the appeal filed by the Municipality of Shtime; (ii) the absence of the reasoning in the court decision; and (iii) the violation of the principle of the legal certainty, as a result of the inconsistency of the court decision-making. The Applicant also alleged that the contested Judgment of the Court of Appeals has violated her rights guaranteed by Article 46 [Protection of Property] of the Constitution in conjunction with Article 1 of Protocol No. 1 (Protection of Property) to the European Convention on Human Rights.

When assessing the Applicant’s allegations, the Court first elaborated on the principles of its own case-law and that of the European Court of Human Rights pertaining to the principle of equality of arms and procedural adversariality, and then applied them to the circumstances of the specific case. As for the Applicant’s allegation of violation of the right to a fair and impartial trial, due to the violation of the principle of equality of arms and procedural adversariality, the Court found that the failure to notify the Applicant of the response to the appeal, which the Municipality of Shtime had filed with the Court of Appeal of Kosovo, is in contradiction with the principle of equality of arms and procedural adversariality, given that the Applicant has been placed at a disadvantage with the opposing party. However, the Court clarified that the violation remains of a declaratory nature since, based on paragraph 4 of Article 187 (Untitled) of Law no. 03/L-006 on the Contested Procedure, submissions that arrive at the court after the response to the appeal, are not to be considered unless the court requests supplementary statement. Secondly, with regard to the applicant’s claim of violation of the right to a fair and impartial trial as a result of the lack of reasoning of the court decision and violation of the principle of legal certainty due to the inconsistency in the judicial decision-making of the regular courts, the Court, based on its case-law and that of the European Court of Human Rights, stressed that (i) the regular courts had provided sufficient reasoning for rejecting the applicant’s request for compensation on behalf of advancement in career due to the lack of evidence proving that she advanced in her career or was promoted; and (ii) the Court cannot find the existence of “profound and persistent differences” in the case-law of the Court of Appeal and the Supreme Court, which violate the principle of legal certainty, referring to 2 (two) judgments of the Basic Court. Finally, with regard to the applicant’s claim of a violation of the right to property guaranteed by Article 46 [Protection of Property] of the Constitution, in conjunction with Article 1 (Protection of Property) of Protocol No. 1 to the ECHR, the Court, based on its case-law and that of the European Court of Human Rights, stressed that in order for an “expectation” to be legitimate, it must be more concrete than a “mere hope” and it must be based on a legal provision or a legal act, such as a court decision, and that, in the applicant’s case, the regular courts had found that the applicant had not fulfilled the legal requirement under item 1.5 of paragraph 1 of Article 7 (Licensing) of the Collective Agreement for compensation on behalf of advancement in career.

Consequently, and based on the explanations provided in the published Judgment, the Court found that through the challenged Judgment of the Court of Appeals of Kosovo, as a result of infringing the principle of procedural adversariality, the Applicant’s right to a fair and impartial trial, guaranteed by Article 31 [Right to a Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, has been violated. Meanwhile, concerning the allegations of (i) violation of the right to a fair and impartial trial due to the lack of reasoning of the court decision and inconsistency in judicial decision-making; and (ii) violation of the right to property, the Court found that the same are “unsubstantiated or unjustified”, and consequently manifestly ill-founded on constitutional grounds, as stipulated in paragraph (2) of Rule 34 of the Rules of Procedure. Finally, as per the provisions of the applicable law whereby submissions that arrive at the court after the response to the appeal are not to be considered by the court, unless expressly requested, and the finding that the other allegations of the applicant are unsubstantiated and unjustified, the Court found that the challenged Judgment should not be annulled and that the violation is of a declaratory nature.

You can read the notification regarding the Judgment by clicking here
Meanwhile, you can read the full text of the Judgment and its summary in the two official languages of the Republic of Kosovo and in English, by clicking here

3. KI117/23
Applicant: “Exclusive” L.L.C.
Published on: 27 December 2024
Request for constitutional review of the Decision [E. Rev. no. 1/2023] of the Supreme Court of the Republic of Kosovo, of 17 January 2023

The Court assessed the constitutionality of the Decision [E. Rev. no. 1/2023] of the Supreme Court of the Republic of Kosovo, of 17 January 2023. The Judgment first explains the circumstances of the present case, which are related to a dispute initiated by the Applicant for compensation of damage from the relevant company with which it had a contractual relationship. More specifically, and as clarified in the Judgment, the Applicant had entered into a contract with the Kosovo Medicines Agency for the supply of medicines and medical consumables from the company Zdravlje Actavis, and it had received a shipment of goods from the aforementioned company according to the agreement for the import of goods from this company. However, in January 2012, the Ministry of Health of the Republic of Kosovo temporarily suspended the marketing authorization certificate for medicinal products from Serbia, on the grounds that the Certificate of Pharmaceutical Product needed to be confirmed. Consequently, and as clarified, the Applicant initiated legal proceedings, requesting appropriate compensation for damages and lost profit, also specifying the value of the dispute during the specification of the statement of claim. The Basic Court in Prishtina and the Second Instance Chamber of the Commercial Court rejected the lawsuit of the Applicant in its entirety, including the specified amount of the dispute, whereas the request for revision submitted to the Supreme Court was rejected on procedural grounds, namely on the grounds that the value of the dispute did not exceed the threshold of 3,000 euros as determined by paragraph 2 of Article 211 (no title) of Law no. 03/L-006 on Contested Procedure, despite the fact that, according to the case file, the Applicant had specified the value of the dispute during the contested proceedings in the first instance. Before the Court, the Applicant challenges the aforementioned Decision of the Supreme Court, alleging a violation of the rights protected by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights. In essence, the Applicant claimed that the Supreme Court’s decision violated his right of “access to court” guaranteed by the above-mentioned Articles of the Constitution and the European Convention on Human Rights, inter alia, because (i) despite the fact that the value of the dispute had been determined in judicial proceedings; (ii) the Supreme Court rejected the request for revision exactly on the basis of the value of the dispute, regardless of the fact that the value had been indicated during the specification of the statement of claim. In assessing the allegations of the Applicant and whether the latter’s right of access to the Supreme Court had been violated, the Judgment (i) elaborated the general principles of the right of access to a court developed through the case law of the European Court of Human Rights and affirmed through the case law of the Constitutional Court, including the principles and criteria related to the ratione valoris restriction on access to higher instance courts; and subsequently (ii) applied those same principles and criteria to the circumstances of the present case. The Judgment of the Court specifically refers to the principles and criteria established by the European Court of Human Rights in the case Zubac v. Croatia, whereby the latter developed a specific test in terms of the criterion of proportionality of the restriction on access to higher instance courts as a result of the ratione valoris threshold. In applying the criteria related to the ratione valoris threshold, the Court, in the specific circumstances of the present case, assessed whether: (i) access to the Supreme Court, as a result of the ratione valoris threshold, constituted a restriction; (ii) whether this restriction pursued a legitimate aim; and (iii) whether the restriction was proportionate, and in terms of the latter, in accordance with the criteria established by the European Court of Human Rights, it assessed issues related to (a) the foreseeability of the restriction on access to court as a result of the threshold of the value of the dispute; (b) whether the Applicant or the Supreme Court should bear the consequences of errors made in the proceedings before the lower instance courts; and (c) whether the Supreme Court used “excessive formalism” in applying this restriction, to come to a conclusion regarding the proportionality of the restriction of the Applicant’s access to the Supreme Court. The Judgment first emphasizes that the competence of the Supreme Court, provided by law, to assess the admissibility of revision in terms of the ratione valoris threshold before examining it on the merits, based on the provisions of the Law on Contested Procedure, is not contested. Furthermore, in applying the above-mentioned criteria to the circumstances of the present case, the Judgment also highlights that, based on the very essence of the jurisdiction and competence of the Supreme Court, as the highest judicial authority, to adjudicate on the issues of legality of decisions taken by lower instance courts, the ratione valoris threshold is (i) determined by law; and (ii) pursues a legitimate aim, which serves to uphold the rule of law and the proper administration of justice. However, in assessing whether the ratione valoris threshold (iii) was proportionate to the legitimate aim, in the circumstances of the present case, the Court, based on the case law of the European Court of Human Rights and its own case law, considered the conclusion of the Supreme Court as “excessive formalism” in interpreting and applying the law in the context of access to court, inter alia, because (a) the Supreme Court, in rejecting the Applicant’s revision as inadmissible, referred to the value of the dispute of 1,000 (one thousand) euros based on the amount of the court fee of 20 (twenty) euro paid by the Applicant when filing the lawsuit, despite Article 36 (no title) of the Law on Contested Procedure, which essentially obliges lower instance courts to act ex officio in determining the value of the dispute under the circumstances specified in the aforementioned Article; and furthermore, (b) the Supreme Court did not take into account the specification of the value of the dispute that the Applicant clarified during the first instance proceedings. Consequently, the Court found that this action of the Supreme Court was not proportionate to the legitimate aim of the legal ratione valoris threshold regarding the guarantee of the right of access to higher instance courts.

The Court also highlighted the fact that its finding of violation of 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 European Convention on Human Rights applies only to the specific circumstances of the present case, the assessment of which must be made on a case-by-case basis, and that it is related solely to the right of access to a court, namely to the Supreme Court, so that is does not prejudice the outcome of the merits of the case in any way.

4. KI118/23
Applicant: Shehide Muhadri
Published on: 27 December 2024
Request for constitutional review of the Judgment [Ac. no. 530/2016] of the Court of Appeals of the Republic of Kosovo, of 30 March 2023

The Court assessed the constitutionality of the Judgment [Ac. no. 530/2016] of the Court of Appeals of the Republic of Kosovo, of 30 March 2023. The judgment initially clarifies that the circumstances of the present case are related to the Applicant’s claims regarding the right to acquire ownership with an acquisition by prescription. The Court regarding the same case had previously received two (2) referrals from the Applicant, namely referrals KI145/18 and KI49/20. In the first referral, namely KI145/18, the Court found a violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, on the grounds of the lack of reasoning of the court decision by the Court of Appeals. After the Court’s decision, the Court of Appeals, in the repeated procedure, rendered a new Judgment, which was again challenged before the Constitutional Court, by referral KI49/20. The Court again found a violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, on the grounds of the lack of reasoning of the court decision by the Court of Appeals. According to the clarifications given in the Judgment, on 30 March 2023, based on the recommendations of the Court, the Court of Appeals rendered a new judgment, upholding the previous decisions of the Basic Court, inter alia, on the grounds that the “ownership over the socially owned property cannot be acquired on the basis of the acquisition by prescription“ and its reasoning, this time, had also based on the legal opinion issued by the Supreme Court, which clarified how the lower instance courts should decide on cases with similar factual and legal circumstances. The Applicant before the Court challenged Judgment [Ac. nr. 530/2016] of 30 March 2023 of the Court of Appeals, claiming violation of the rights guaranteed by Article 24 [Equality Before the Law] and Article 31 [Right to Fair and Impartial Trial] of the Constitution, as well as by paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights. More specifically, the Applicant alleged that the challenged Judgment of the Court of Appeals again violated her rights guaranteed by the above articles, among other things, because the Court of Appeals again did not take into account the findings of the Court in its Judgment, in case KI49/20. In assessing the Applicant’s allegations, the Court first (i) elaborated the general principles of its case law and that of the European Court of Human Rights, relating to the right to a reasoned court decision, guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights; and then (ii) applied the same in the circumstances of the present case. According to the clarifications given in the Judgment, the Court considered that the Court of Appeals, by Judgment [Ac. no. 530/2016] of 30 March 2023, (i) addressed the substantial claims of the Applicant, responding specifically to the issue related to consistency in decision-making on issues of acquisition of property in good faith through the acquisition by prescription; and (ii) provided sufficient, comprehensive and concrete reasoning regarding the claims raised. Therefore, the Court concluded that the Court of Appeals in Judgment [Ac. 530/2016] of 30 March 2023, (i) provided the legal basis and explained with clarity why in the case of the Applicant a different outcome could not be expected regarding the right to acquire ownership with an acquisition by prescription; and (ii) why the cases referred to the Applicant in a regular procedure before the Court of Appeals did not constitute a case law and source of law regarding the manner of acquiring ownership with acquisition by prescription. Therefore, the Court concluded that the Judgment (Ac. no. 530/2016] of 30 March 2023 of the Court of Appeals, is not contrary to Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo and paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

5. KO15/24
Applicant: Ombudsperson Institution
Published on: 27 December 2024
Request for constitutional review of Article 28 of Law no. 08/L-228 on General Elections in the Republic of Kosovo

The Court assessed the constitutionality of Article 28 of Law no. 08/L-228 on General Elections in the Republic of Kosovo. The Judgment initially clarifies that the essence of the matter referred to the Court concerns article 28 (Gender Quotas) of the Law on General Elections, which stipulates that (i) in the list of candidates of each political entity at least thirty percent (30%) shall be male and at least thirty percent (30%) shall be female, with one candidate of each gender included at least once in each group of three (3) candidates, counting from the first candidate on the list; (ii) this provision does not apply to lists consisting of one or two candidates; and (iii) the Central Election Commission shall allocate additional public funds, in the amount of one percent (1%) of the total amount allocated to the political entity, for each mandate won by women over the thirty percent (30%) quota at the time of certification and that the Central Election Commission plans an additional budget for this purpose after each election. According to the explanations given in the Judgment, the Ombudsperson contests the constitutionality of the aforementioned article of the Law on General Elections, alleging that it is contrary to the principles and values set forth in articles 7 [Values], 24 [Equality Before the Law] and 45 [Freedom of Election and Participation] of the Constitution, raising, among others, the following specific allegations: (i) the introduction by law of a quota of thirty percent (30%) for each gender constitutes an unjustified prejudice and justifies unequal treatment, considering that the gender percentage is almost fifty percent (50%) with fifty percent (50%) between “male and female”; (ii) in the electoral practice “it has not happened that political entities have submitted for certification lists of candidates with fifty percent (50%) of males and females”; and (iii) this provision is also contrary to the spirit of gender equality provided for in article 5 (General measures to prevent gender discrimination and ensure gender equality) of the Law no. 05/L 020 on Gender Equality. The Ombudsperson’s allegations are counter-argued by the Parliamentary Group of VETËVENDOSJE! Movement, which, among others, and referring to the Court’s previous case-law, emphasizes that article 28 (Gender Quotas) of the Law on General Elections is in accordance with the Constitution, in essence, because (i) the quota of thirty percent (30%) on the electoral lists is a legal quota, whereas the provisions of the Law on Gender Equality are legal and constitutional ideals; and (ii) the aforementioned article does not constitute indirect discrimination, taking into account that this minimum threshold is an affirmative measure aimed at maintaining gender balance in politics. In the above context, the Judgment emphasizes that the essence of the matter raised before the Court concerns the compatibility with the Constitution of article 28 (Gender Quotas) of the Law on General Elections, namely the assessment of whether the stipulation of a legal quota of at least thirty percent (30%) of the representation of each gender in the list of political entities competing in the elections, violates the electoral rights provided by the Constitution. In this regard, the Judgment initially emphasizes the fact that gender equality is one of the most essential values of the constitutional order of the Republic of Kosovo and that the public authorities of the Republic, and in particular, the Assembly of the Republic of Kosovo, in the exercise of its legislative competence, has the positive obligation to undertake all necessary measures towards the accomplishment of gender equality in the Republic of Kosovo. As it pertains to the electoral rights and which constitute the essence of this Judgment, the latter recalls that article 45 [Freedom of Election and Participation] of the Constitution, among others, provides that every citizen of the Republic of Kosovo who has reached the age of eighteen (18), even if on election day, enjoys the right to elect and to be elected, unless this right is limited by a court decision. This constitutional right, must also be assessed in light of the constitutional values and principles, according to which, the Republic of Kosovo ensures gender equality as a fundamental value for the democratic development of the society, providing equal opportunities for both female and male participation in the political, economic, social, cultural and other areas of societal life. In addition, the Judgment underlines that based on the constitutional provisions, despite the fact that everyone is equal before the law, the principles of equal legal protection shall not prevent the imposition of measures necessary to protect and advance the rights of individuals and groups who are in unequal positions, and such measures shall be applied only until the purposes for which they were imposed have been fulfilled. According to the explanations given in the Judgment, while the Constitution establishes that the principles of equal legal protection do not prevent the imposition of measures necessary for the protection and advancement of the rights of individuals and groups that are in unequal position, enabling, among others, the introduction of legal quotas for equal participation and representation of genders in political life until the necessary equality has been achieved, the Constitution does not stipulate the level, namely the percentage of this legal quota, delegating this matter to the competence of the Assembly of the Republic, always under the obligation to respect the positive obligations of the state and the standards stemming from applicable international instruments. In the context of the latter, the Judgment, among others, elaborates (i) the general principles of the Constitution and the European Convention on Human Rights, as it pertains to the right to be elected and to participate; (ii) the instruments and documents adopted at the level of the United Nations and the Council of Europe relating to the affirmative measures for equal representation in politics; (iii) the recommendations of the Council of Europe and the opinions and reports of the Venice Commission on gender quotas on electoral lists as specific measures to address the de facto inequality between the genders in political representation; and (iv) the case-law of the Court, that of the European Court of Human Rights and that of the Constitutional Courts of other countries regarding electoral rights and gender quotas. Based on the documents and principles elaborated in the Judgment, the latter also points out the Resolution 1706(2010) of the Parliamentary Assembly of the Council of Europe, which recommends that in countries with a list system with proportional representation, consideration should be given to introducing a legal quota that provides not only for a high proportion of women candidates and ideally at least forty percent (40%), but also for a strict rule of ranking the positions. From the analysis elaborated in the Judgment, it results that the member states of the Council of Europe, including based on the Recommendation of the Parliamentary Assembly, are encouraged to increase the representation of women by introducing gender quotas, which, in principle, have two features, namely (i) the stipulation of a minimum quota of representation on the electoral lists of political entities; and (ii) a definition of a zipper ranking order of candidates from each gender or of a candidate of each gender including at least once in each group of three (3) candidates in the case of a quota of thirty percent (30%), with the aim of ensuring that candidates of the less represented gender do not risk being placed too low on the list and have a real opportunity to be elected. According to the explanations given in the Judgment, it results that the Member States of the Council of Europe and which have introduced such mechanisms in the relevant laws regulating the electoral lists of political entities competing in elections, in principle, have determined the quota level and/or percentage from twenty percent (20%) to forty percent (40%). Further and in the context of assessing the constitutionality of the contested provision, the Judgment, initially and in relation to the percentage of the gender quota in the electoral lists of political entities, emphasizes the fact that while the Constitution provides for the possibility of imposition of necessary measures for the protection and advancement of the rights of individuals and groups that are in unequal position, only until the purpose for which they were imposed has been fulfilled, it does not stipulate the percentage of this quota, leaving the necessary space to the legislative branch, namely the Assembly of the Republic of Kosovo, to determine the percentage of this quota, in accordance with the positive obligations of the state to ensure gender equality and which, once determined, must be strictly enforced. The Judgment also clarifies that, based on the case-law of the European Court of Human Rights, the determination of this quota as a temporary and necessary measure until gender equality is achieved, is a matter of public policy and falls within the purview of the legislative branch. According to the explanations provided, it is not within the competence of the Constitutional Court to determine the percentage of this legal quota, but the Assembly of the Republic of Kosovo has the full competence to advance the percentage of the aforementioned quota as it pertains to the gender representation on the lists of political entities competing in the elections, always in the context of a necessary measure, until the purpose of achieving gender equality in the Republic of Kosovo has been fulfilled and in accordance with the standards established through the mechanisms of the Council of Europe as elaborated in this Judgment. Secondly, and in relation to the intended goal of fifty percent (50%) representation as established in the Law on Gender Equality, the Judgment refers to its previous case-law through which this provision has been elaborated, including its Judgment in the case KI45/20 and KI46/20, with applicants Tinka Kurti and Drita Millaku and which, among others, emphasizes that the Assembly as a legislator has not formulated the percentage of fifty percent (50%) as a mandatory legal quota but has formulated it in the form of an aspiration towards achieving the purpose and determination of the Constitution for gender quality in the Republic of Kosovo. More precisely and according to the explanations provided, the fifty percent (50%) aimed through the Law on Gender Equality is not a legal quota for mandatory representation such as the thirty percent (30%) provided for in article 28 (Gender Quotas) of the Law on General Elections. Having said that, both are laws adopted by the Assembly of the Republic and it is up to the latter, to gradually achieve the determinations it has itself adopted through the law-making process. Thirdly, and pertaining to the necessary standard of zipper ranking order of candidates by respective genders, the Judgment emphasizes that article 28 (Gender Quotas) of the Law on General Elections specifies that the list of candidates of each political entity must include one candidate of each gender included at least once in each group of three (3) candidates, which is counted from the first candidate on the list, and that such a determination, is also based on applicable international standards. Finally, the Judgment emphasizes the fact that the Republic of Kosovo has the constitutional obligation to ensure gender equality as a fundamental value for the democratic development of the society and equal opportunities for the participation of women and men in political, economic, social, cultural and other areas of societal life. As the relevant documents of the Council of Europe establish and which have been elaborated in the Judgment, the lack of equal representation of women and men in political and public decision-making, is a threat to the legitimacy of the respective democracies.

6. KO283/23
Applicants: Abelard Tahiri and nine (9) other deputies of the Assembly of Kosovo
Published on: 27 December 2024
Request for constitutional review of the Decision [no. 08-V-668] of 15 December 2023 of the Assembly of the Republic of Kosovo, on the dismissal of Mr. Agron Beka from the position of member of the Kosovo Prosecutorial Council

The Court assessed the constitutionality of the Decision [no. 08-V-668] of 15 December 2023 of the Assembly of the Republic of Kosovo, on the dismissal of Mr. Agron Beka from the position of member of the Kosovo Prosecutorial Council. The Judgment initially explains that the circumstances of the present case are related to the dismissal of Mr. Beka from the position of non-prosecutor member of the Prosecutorial Council, through the challenged Decision of the Assembly. As explained in the Judgment, the dismissal of the member of the Kosovo Prosecutorial Council was preceded by Recommendation [no. 08/4446/Do-1994] of 28 September 2023 by the Committee on Legislation, Mandates, Immunities, Rules of Procedure of the Assembly, and Oversight of the Anti-Corruption Agency, whereby the latter had recommended to the Assembly the dismissal of Mr. Beka from the position of non-prosecutor member, based on the findings of this parliamentary committee. As reflected and explained extensively in the published Judgment, in the aforementioned Recommendation of the Committee on Legislation are listed the reasons on which the latter bases its recommendation to the Assembly for the dismissal of Mr. Beka from the position of non-prosecutor member of the Prosecutorial Council, assessing that the respective actions constitute violations of the law, specifically subparagraph 2.2 of paragraph 2 of Article 13 (Termination of Mandate) of Law no. 06/L-056 on Kosovo Prosecutorial Council, which specifically provides that a member of the Prosecutorial Council shall be dismissed if “2.2 he/she exercises the function contrary to the duties and responsibilities”. The Applicants before the Court challenged the constitutionality of the Decision [no. 08-V-668] of 15 December 2023 of the Assembly, alleging, inter alia, that it was issued in contradiction with paragraph 1 of Article 4 [Form of Government and Separation of Power], paragraphs 1 and 2 of Article 31 [Right to Fair and Impartial Trial], Article 32 [Right to Legal Remedies], Article 54 [Judicial Protection of Rights], as well as paragraphs 1 and 4 of Article 110 [Kosovo Prosecutorial Council] of the Constitution. According to the Applicants, essentially, the Assembly has exceeded its constitutional authorizations because it does not have the authority to terminate the constitutional mandate of a member of the Prosecutorial Council. The Applicants’ allegations were supported by the Prosecutorial Council and the Parliamentary Group of Aleanca për Ardhmërinë e Kosovës while they were opposed by the Committee on Legislation and the Parliamentary Group of the Movement VETËVENDOSJE!. In the context of the above-mentioned issues, the Judgment initially highlights that the aforementioned circumstances and allegations have raised, among others, the following questions: (i) whether the Assembly has the authorization to terminate the constitutional mandate of a non-prosecutor member of the Prosecutorial Council; and (ii) whether the termination of the mandate in the circumstances of the present case has resulted in violation of the independence of the Prosecutorial Council.

In the context of principles deriving from the analysis of constitutional provisions, the Judgment, among others, clarifies that in the context of exercising the functions of the Assembly concerning independent constitutional institutions within Chapter VII [Justice System] of the Constitution, the interaction of the Prosecutorial Council with the Assembly is of particular importance, according to the provisions of Articles 65 [Competencies of the Assembly] and 110 [Kosovo Prosecutorial Council] of the Constitution, which essentially define the exercise of the Assembly’s competence to determine the composition of the Prosecutorial Council and to elect the members of the Prosecutorial Council, always in order to preserve the full independence of this Council in exercising its constitutional functions, as defined in paragraph 1 of Article 110 [Kosovo Prosecutorial Council] of the Constitution and, at the same time, to respect the separation and balance of powers, as defined in paragraph 1 of Article 4 [Form of Government and Separation of Power] of the Constitution. The Judgment further recalls that the principles related to the independence of the Prosecutorial Council, the interaction of the latter with the Assembly in order to preserve the full independence of the Prosecutorial Council in exercising its constitutional functions, as well as the security of the mandates of the members of the Prosecutorial Council, have been established by the Court through its Judgment of 24 March 2023 in the cases KO100/22 and KO101/22 regarding the constitutional review of Law no. 08/L-136 on Amending and Supplementing the Law on the Prosecutorial Council. In the context of the specific circumstances of this case, the Judgment clarifies that, despite the fact that the Constitution, through its paragraph 4 of Article 110 [Kosovo Prosecutorial Council], has defined that the composition of the Prosecutorial Council, as well as provisions, inter alia, related to dismissal, are defined by law, this competence of the Assembly must always be exercised in accordance with paragraph 1 of Article 110 [Kosovo Prosecutorial Council] of the Constitution, whereby full independence of the Council is guaranteed, a competence which cannot be diminished through legal provisions. However, as per explanations given, In the context of the dismissal of non-prosecutor members of the Prosecutorial Council, based on the content of paragraph 10 of Article 10 (Procedure of proposal, election and dismissal of members elected by the Assembly) of the Law on Prosecutorial Council, two different forms of proposal to the Assembly result for the dismissal of a non-prosecutor member of the Prosecutorial Council, namely: (i) through a proposal by the relevant Committee of the Assembly, which is tasked with reviewing and evaluating the performance or conduct of the non-prosecutor member and, in case of a proposal for dismissal, the latter is submitted to the Assembly for voting; and (ii) through a proposal by the Prosecutorial Council itself, when it considers that a non-prosecutor member does not fulfill his duty in accordance with the responsibilities or if he has acted inappropriately, a proposal which is submitted to the Assembly where it is subject to voting, as in the first case. In the present case, the proposal for dismissal of the respective non-prosecutor member of the Council comes from the relevant Committee of the Assembly, specifically from the Committee on Legislation as a result of the findings specified in the aforementioned recommendation. The Judgment clarifies that the possibility of dismissing a non-prosecutor member of the Prosecutorial Council by the Assembly, following the proposal of the relevant Committee, is expressly provided in the applicable Law on Prosecutorial Council. The Judgment also clarifies that the Court through its case law has addressed cases, brought before it based on paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, wherein the decisions of the Assembly for the dismissal of members of independent institutions, established both by the Constitution and by law, were challenged. Through its case law, the Court has clarified the limitations of the authorizations of the Assembly for the dismissal of members of independent institutions, which it has also elected itself, noting that, in exercising this function, the Assembly is obliged to comply with and implement the specific provisions of the relevant laws it has adopted. These principles have been established, inter alia, through: (i) case KO127/21, concerning the dismissal of five (5) members of the Independent Oversight Board for the Civil Service of Kosovo collectively; (ii) case KO134/21, concerning the collective dismissal of all members of the Board of Radio Television of Kosovo; (iii) case KO157/23, concerning the dismissal of a member of the Board of the Procurement Review Body; and (iv) case KO139/21, concerning the dismissal of five (5) members of the Board of the Railway Regulatory Authority. According to the clarifications given in the aforementioned Judgments and in this Judgment, the Court found violations of constitutional provisions in the first three cases, based on the formulations of the provisions of the applicable laws, including the fact that the respective dismissals were collective, the respective decisions for their dismissal did not contain proper reasoning and, moreover, it was the decision-making of the dismissed members that had resulted in their dismissal. While in the fourth case, specifically the dismissals related to the members of the Board of the Railway Regulatory Authority, the Court did not find any constitutional violation, because the formulations of the provisions of the applicable law allowed the Assembly wider discretion in dismissing the respective members. In the context of the circumstances of the present case, the Judgment clarifies that Mr. Beka was dismissed by the Assembly based on the recommendation of the Committee on Legislation, wherein the reasons for exercising his function “[…] in contradiction with his duties and responsibilities” were listed, based on a procedure for the dismissal of non-prosecutor members of the Prosecutorial Council that is expressly defined by Law on the Prosecutorial Council, and on a legal basis that is also expressly defined in the aforementioned law. In such circumstances where the Assembly has exercised its role related to non-prosecutor members of the Prosecutorial Council and has dismissed a non-prosecutor member based on the procedure and grounds for dismissal according to the provisions of the Law on the Prosecutorial Council, including based on reasoning that does not appear to be manifestly arbitrary, the Judgment holds that the Assembly, through the challenged Decision, has not exceeded its constitutional and legal authorizations in the context of paragraph 9 of Article 65 [Competencies of the Assembly] and paragraph 4 of Article 110 [Kosovo Prosecutorial Council] of the Constitution.

Resolutions on Inadmissibility
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II.
In eight (8) Resolutions on Inadmissibility published by the Court, the latter found that the Applicants’ referrals are inadmissible based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 48 (Accuracy of the Referral) of the Law, paragraph (2) of Rule 34 (Admissibility Criteria) of the Rules of Procedure, because (i) the allegations of the respective Applicants fall into the category of the fourth instance; (ii) reflect allegations with a “clear absence of a violation”; and/or (iii) the same are “unsubstantiated or unreasoned”.

7. KI82/24
Applicant: Shpejtim Ahmeti
Published on: 6 December 2024
Request for constitutional review of the Decision [PN. no. 250/2024] of the Court of Appeals of the Republic of Kosovo, of 14 February 2024