Decisions published in July 2024
09.08.2024In July 2024, in the Constitutional Court:
• thirty seven (37) cases were reviewed;
• decisions were rendered for thirty one (31) cases:
• thirty one (31) decisions were published;
In this period, on the Constitutional Court’s webpage are published (i) eight (8) Judgments; (ii) twenty one (21) Resolutions on Inadmissibility; and (iii) two (2) Decisions.
Judgments
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I.
1. KO157/23
Applicant: Vlora Dumoshi and eleven (11) other deputies
Published on: 1 July 2024
Request for constitutional review of Decision no. 08-V-583 of the Assembly of the Republic of Kosovo, of 13 July 2023, on the dismissal of the member of the Board of the Procurement Review Body
The Court assessed the constitutionality of Decision [no. 08-V-583] of the Assembly of the Republic of Kosovo, of 13 July 2023, on the dismissal of the member of the Board of the Procurement Review Body. The circumstances of the present case are related to the dismissal of a PRB Board member by the contested Decision. As clarified in the Judgment, the dismissal of the PRB Board member was preceded by the Decision [PSH. 397/409/22] of the PRB Board of 11 October 2022, which annulled the Notice of the Contracting Authority, namely the Ministry of Health, for the cancellation of the procurement activity entitled “Supply of Insulin Analogues from the Essential List Lot 1 and Lot 3”. The aforementioned decision of PRB’s Review Panel was rendered unanimously, following the complaints by two (2) economic operators and after having examined the expertise of the relevant procurement expert, specifying that the Ministry of Health Notice on the cancellation of the procurement activity is annulled, and that the case is remanded for re-evaluation. The aforementioned decision of PRB’s Review Panel, at the request of the Ministry of Health, has been subject to assessment by the regular courts, the Basic Court in Prishtina and the Court of Appeals, respectively, which rejected the lawsuit, respectively the complaint, of the Ministry of Health, as inadmissible. In what followed, the Government of the Republic of Kosovo proposed the dismissal of the chair of PRB’s Review Panel, which had issued the aforementioned decision, on grounds of “violation of professional ethics”. This proposal of the Government was reviewed by the Committee on Budget, Labor and Transfers of the Assembly of the Republic of Kosovo, which decided to recommend to the Assembly not to approve, namely, to reject the proposal of the Government of the Republic of Kosovo for the dismissal of the PRB Board member. Nevertheless, the Assembly of the Republic of Kosovo, in the plenary session of 13 July 2023, based on the proposal of the Government, through the contested Decision, dismissed the PRB Board member. The applicants before the Court challenged the constitutionality of this Decision of the Assembly, claiming, among others, that it was rendered in violation of the oversight competence of the Assembly, according to the provisions of paragraph 9 of article 65 [Competencies of the Assembly] and article 142 [Independent Agencies] of the Constitution, in essence, underlining (i) the lack of legal basis for the respective dismissal; (ii) the violation of PRB’s functional independence; (iii) interference with the competence of the judicial branch to assess the legality of the PRB’s decision-making; and (iv) the violation of the fundamental rights and freedoms of the dismissed member of the PRB. The claims of the applicants were opposed by the Parliamentary Group of the VETËVENDOSJE Movement!. In the context of the principles arising from the analysis of constitutional principles, the Judgment initially clarifies that the Assembly exercises its function based, among others, on article 4 [Form of Government and Separation of Power] and article 65 [Competencies of the Assembly] of the Constitution, including the competence to (i) adopt laws, resolutions, and other general acts; and (ii) to oversee the work of the Government and other public institutions, which, based on the Constitution and laws, report to the Assembly. According to the clarifications given in the Judgment, both of these competencies constitute the essence of the constitutional function of the Assembly. Having said this and based, among others, on articles 65 [Competencies of the Assembly] and 74 [Exercise of Function] of the Constitution, in the context of the constitutional competence of oversight, the Assembly is conditioned in the exercise of this function in compliance with (i) constitutional provisions, including those stipulated by articles 3 [Equality Before the Law], 4 [Form of Government and Separation of Power] and 7 [Values] of the Constitution, respectively; and (ii) the limits and authorizations established in the laws approved by the Assembly itself in relation to the public institutions that report to/are overseen by the Assembly. According to the clarifications given in the Judgment, in the context of the exercise of the oversight function of the Assembly pertaining to the Independent Agencies established based on Article 142 [Independent Agencies] of the Constitution, within which also the PRB falls based on its characteristics according to the applicable laws on public procurement, but also according to Law no. 06/L-113 on the Organization and Functioning of the State Administration and Independent Agencies, specific importance is attached to the oversight limitations of the Assembly based on paragraph 9 of article 65 [Competencies of the Assembly] of the Constitution in conjunction with paragraph 1 of Article 142 [Independent Agencies] of the Constitution and laws related to public procurement in the Republic of Kosovo, as adopted by the Assembly itself. Furthermore, based on the provisions of Law no. 04/L-042 on Public Procurement of the Republic of Kosovo and the respective amendments and supplementation to this law, among others, (i) PRB is an independent review body that exercises its authority, powers, functions and responsibilities as established in the Law on Public Procurement; and (ii) no person or public official may exercise or attempt to exercise political influence or unlawful influence on PRB or any of its employees concerning their decisions. Further and according to the given clarifications, the aforementioned Law establishes the relationship between PRB and the judicial and legislative branches, respectively. In the context of the former, the applicable law determines that the legality of PRB’s decision-making is subject to judicial control. While, in the context of the second, the applicable law establishes the relationship between the Assembly and PRB, related to the appointment of PRB’s members, reporting obligations and the dismissal of PRB’s members. Pertaining to the latter, according to the clarifications provided for in the Judgment, taking into account the importance of PRB’s functional independence, the applicable laws, over the years, have specified that the dismissal of PRB members may be done only after the grounds for dismissal have been confirmed through the decision-making of the courts, whereas with the amendments and supplementations to the Law on Public Procurement of March 2016, exceptionally, the possibility for the Government to propose to the Assembly the dismissal of the chairman or a member of the PRB has been provided for, “if he/she has committed any act which is contrary to professional ethics and professionalism associated with professional duties”, a ground on which the dismissal of the PRB member resulted in the circumstances of the present case. However, based on the clarifications given in the Judgment, neither the Government nor the Assembly have given any justification regarding the alleged violation of the “professional ethics” of the PRB member, the basis on which the proposal and her dismissal was made. The Committee on Budget, Labor and Transfers of the Assembly had recommended to the latter not to approve the Government’s proposal for dismissal. In addition, the Basic Court and the Court of Appeals dismissed as inadmissible the lawsuit and the complaint of the Ministry of Health for the annulment of the Decision of the PRB. In fact, based on the circumstances of the case, it results that the PRB member was dismissed for her decision-making regarding the issuance of the PRB Decision on the annulment and re-evaluation of the Ministry of Health’s Notice on the cancellation of the relevant procurement activity.
According to the clarifications given in the Judgment and relying on constitutional and legal guarantees, as well as the case-law of the Court, including in the context of dismissals of members of institutions/agencies and/or independent bodies for their decision-making, the Court emphasizes that the individual and collegial independence of PRB members, does not only mean independence from external influences that the PRB members may face, but also from influences from the body that has appointed them to the relevant positions – in this case, the Assembly. This independence embodies the intention that the members of the relevant bodies are free to exercise their functions without fear of any consequences related to the performance of their functions based on the authorizations pursuant to the applicable laws. The latter, as far as it is relevant in the circumstances of the case, accurately determine that (i) the legality of PRB’s decision-making is subject to judicial review; whereas (ii) PRB members are suspended and/or removed from office, in the event of an indictment or a final court decision, respectively. The possibility of dismissing a PRB member on the ground of “professional ethics” cannot be invoked formalistically to justify the dismissal of a PRB member, for decision-making in concrete cases, if the violation of the rules of “professional ethics” is not convincingly proven. Such a precedent, based on which PRB members could be dismissed for their decision-making, would deeply undermine PRB’s functional independence and the very purpose of its existence, according to the provisions of the applicable laws. Based on the foregoing considerations, the Court decided: (i) unanimously to declare the referral admissible; and (ii) with eight (8) votes for and one (1) against, that the Decision [no. 08-V-583] of 13 July 2023 of the Assembly of the Republic of Kosovo on the dismissal of the member of the PRB Board, is not in compliance with paragraph 9 of article 65 [Competencies of the Assembly] and paragraph 1 of Article 142 [Independent Agencies] of the Constitution.
You can read the notification regarding the Judgment by clicking here
You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here
2. KI154/23
Applicant: Afrim Tafarshiku
Published on: 12 July 2024
Request for constitutional review of Judgment [AC. No. 8304/2021], of the Court of Appeals of the Republic of Kosovo, of 20 February 2023
The Court assessed the constitutionality of Judgment [AC. No. 8304/2021], of the Court of Appeals of the Republic of Kosovo, of 20 February 2023. The circumstances of the present case are related to the applicant’s claim for recognition of the right to compensation of 3 (three) jubilee salaries by the Kosovo Energy Corporation, as the latter rejected the applicant’s request for recognition of the right to compensation mentioned above. The Basic Court approved the claim of the applicant as grounded; while acting upon the appeal of the Kosovo Energy Corporation, the Court of Appeals modified the Judgment of the Basic Court and rejected the claim of the applicant as ungrounded. Based on the case file, in the appeal submitted to the Court of Appeals by the Energy Corporation of Kosovo, the applicant submitted a response to the appeal. However, the Court of Appeals did not consider the latter. The Applicant before the Court contested the aforementioned Judgment of the Court of Appeals, claiming a violation of his rights protected by Articles 3 [Equality Before the Law], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution in conjunction with Articles 6 (Right to a fair trial) and 13 (Right to an effective remedy) of the European Convention on Human Rights, in essence, on the grounds of: (i) the lack of consideration of his response to the appeal filed by the opposing party and, as a consequence, the violation of the principle of “equality of arms”; (ii) erroneous application of the law; as well as (iii) the lack of consistency, namely the divergence in the case law of the Court of Appeals related to disputes regarding jubilee salaries. During the review of the applicant’s allegations, the Court assessed that the essential allegations of the applicant in the circumstances of the present case are related to the principle of “equality of arms” and the principle of “adversariality”, as a result of the Court of Appeals not reviewing the applicant’s response to the opposing party’s appeal. Following this, the Court first elaborated: (i) the general principles regarding “equality of arms” and the principle of procedural “adversariality”, guaranteed by the Constitution and the European Convention on Human Rights and the relevant case law of the Constitutional Court and the European Court of Human Rights, and then (ii) applied the latter in the circumstances of the present case. Based on these principles, the Court first clarified that a response to the appeal was submitted by the applicant within the legal deadline and assessed that the Court of Appeals, due to not considering the response to the appeal, in Judgment [AC. no. 8304/2021] of 20 February 2023, has failed to guarantee the application of the principle of “equality of arms” and the procedural “principle of adversariality”, because the applicant has been placed at a significant disadvantage vis-à-vis the opposing party, and as a result, he was deprived of the opportunity to have a real and substantive confrontation with the arguments and claims presented by the opposing party. Therefore, and as explained in the published Judgment, the Court found that Judgment [AC. no. 8304/2021] of 20 February 2023, of the Court of Appeals of Kosovo was rendered in violation of the constitutional rights of the applicant, guaranteed by 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. The Court also emphasized the fact that its finding is only related to the procedural guarantees related to the principle of “equality of arms” and the principle of procedural “adversariality“, namely the lack of consideration of the response to the appeal by the Court of Appeals and that, in no way does not relate to and does not prejudice the outcome of the merits of the case. This Judgment is also supplemented by a dissenting opinion.
You can read the notification regarding the Judgment by clicking here
You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here
3. KO114/23, KO192/23, KO227/23 and KO229/23
Applicant: The Supreme Court of the Republic of Kosovo
Published on: 17 July 2024
Request for constitutional review paragraph 2 of article 4, paragraph 4 of article 432, and paragraph 2 of article 438 of the Criminal Procedure Code of the Republic of Kosovo No.08/L-032
The Court assessed the constitutionality of paragraph 2 of article 4 (Ne Bis In Idem), paragraph 4 of article 432 (Grounds for Filing a Request for Protection of Legality) and paragraph 2 of article 438 (Judgment on Request for Protection of Legality) of the Criminal Procedure Code of the Republic of Kosovo No. 08/L-032 (Criminal Procedure Code). The judgment first clarifies that the Supreme Court as the referring Court, based on the four (4) cases under consideration before it and which are related to the submission of requests for protection of legality against the respective decisions of the Court of Appeals, namely (i) for the termination of detention; (ii) for objection of evidence and dismissal of the indictment; and (iii) for the conclusion of the criminal procedure, has requested the constitutional review of the aforementioned provisions of the Criminal Procedure Code, with the suspicion that the latter are not in compliance with the Constitution, basically, because based on these provisions, the exercise of the extraordinary legal remedy by the State Prosecutor, could result in the decision of the Supreme Court to the detriment of the defendant, contrary to the ne bis in idem principle. The Supreme Court, among other things, clarifies that, (i) the former codes of criminal procedure, in the context of detention, have allowed the use of the request for protection of legality only with regard to the imposition and extension of detention, but not with regard to termination of detention, moreover, that the request for protection of legality, submitted to the detriment of the defendants, if approved as grounded, had only a declarative effect; whereas, in contrast, (ii) the contested provisions of the current Code of Criminal Procedure, enable the Supreme Court to decide even against the defendant, if the final decision is “manifestly inappropriate or based on serious error”. The Judgment first clarifies that according to paragraph 2 of article 438 of the Criminal Procedure Code, when the Supreme Court considers that the request for the protection of legality, submitted to the detriment of the defendant, is grounded, it only finds a violation of the law, without affecting the final decision. This procedure applies both to the decision of the Court of Appeals regarding the termination of detention, as well as to final decisions by which the criminal procedure was concluded or the indictment was rejected. Having said that, exceptionally, based on the contested provisions of the Criminal Procedure Code, the Supreme Court, through the request for protection of legality, can also decide to the detriment of the defendant, if the contested final decision is “manifestly inappropriate or based on serious error.” In the aforementioned context, the Judgment clarifies the general principles established through the case-law of the European Court of Human Rights regarding the ne bis in idem principle, guaranteed by article 34 [Right not to be Tried Twice for the Same Criminal Act] of the Constitution in conjunction with article 4 (Right not to be tried or punished twice) of Protocol no. 7 of the European Convention on Human Rights, according to which, in principle, no one can be prosecuted or punished twice for the same criminal offense for which he/she was “finally” convicted or acquitted, unless the case is reopened in accordance with the law and criminal procedure, when there are new or newly discovered facts or there was a fundamental flaw in the previous proceedings. According to the case-law of the European Court of Human Rights, in order for the guarantees related to the ne bis in idem principle to be applicable, the respective cumulative criteria must be met, namely the assessment whether (i) both proceedings are “criminal” in nature; and if this is the case, (ii) both proceedings are related to the same offense for which a person has been “acquitted or convicted” by a “final” decision. According to the clarifications provided, the case-law of the European Court of Human Rights clarifies the characteristics of the legal remedies that may be filed against a final decision, as well as the nature of a “final” decision. In relation to the characteristics of the legal remedy, the aforementioned case-law, among others, clarifies that in assessing whether a legal remedy is “ordinary” or “extraordinary”, the law and domestic procedures are taken as a starting point, but the assessment is based on the characteristics of the respective legal remedy and not only on its formal name, namely if the same is in accordance with the principle of legal certainty, including in the context of (i) limited discretion, including in terms of time limits available to use a particular legal remedy; and (ii) the balance between the parties in the possibility of its use. Whereas, related to the nature of the “final” decision, the aforementioned case-law, among others, clarifies that (i) the “final” decision must include the declaration of “innocence or punishment of the person”; and (ii) a decision is “final” if the latter has become an adjudicated matter or res judicata, namely if the decision is irrevocable, which, among others, means that against that decision, there is no longer any possibility of filing legal remedies, when the parties have exhausted these remedies, or the deadlines set by law have elapsed without filing them. In the application of these principles, the Judgment clarifies that, according to the provisions of the Criminal Procedure Code, the legal remedy of the request for protection of legality (i) can be filed within three (3) months from the time the final decision was served, and, consequently, it is clearly limited within a reasonable period of time; and (ii) it is open to both the defendant and the state prosecution, while (iii) it can be filed in cases of violations of substantive and procedural law, but not for erroneous or incomplete determination of the factual situation. On the other hand, according to the clarifications provided, as far as the legal remedy of the request for protection of legality is invoked against the final decision, the same criminal proceedings continues until the “final” decision of the Supreme Court. More precisely, the decision of the Supreme Court following the request for protection of legality, is a continuation of the same criminal proceedings and does not necessarily result in a second proceedings, namely new criminal proceedings for the purposes of article 34 [Right not to be Tried Twice for the Same Criminal Act] of the Constitution in conjunction with article 4 (Right not to be tried or punished twice) of Protocol no. 7 of the European Convention on Human Rights. Consequently, under such circumstances, the guarantees established in article 4 (Right not to be tried or punished twice) of Protocol No. 7 of the European Convention on Human Rights cannot be applied regarding the reopening of a case in which a person was convicted or acquitted by “final decision”. According to the clarifications given in the Judgment, for the purposes of the aforementioned provisions, the Criminal Procedure Code has forese
en the extraordinary legal remedy of reopening of the criminal proceedings and which, unlike the legal remedy of the request for protection of legality, clearly falls under the scope of article 4 (Right not to be tried or punished twice) of Protocol No. 7 of the European Convention on Human Rights. Moreover, according to the clarifications provided in the Judgment, it is quite clear that article 4 (Right not to be tried or punished twice) of Protocol No. 7 of the European Convention on Human Rights, is not applicable to cases of detention, because in those proceedings, the final “acquittal or conviction” for a criminal offense is not decided upon, since the latter is only related to ensuring the presence of the defendants throughout the ongoing criminal proceedings.
(ii) the possibility of the Supreme Court, through the request for protection of legality filed by the State Prosecutor, including against the final decision on the termination of detention, to decide to the detriment of the defendant in the event that the final decision is “manifestly inappropriate or based on serious error”
Disputable concerning the contested provisions of the Criminal Procedure Code, is whether, through the request for protection of legality, the Supreme Court can decide to the detriment of the defendant, including in cases of detention. In this context and regarding the effects of the Supreme Court’s decision-making on the request for protection of legality to the detriment of the defendants, the Judgment reiterates that based on paragraph 1 of article 438 (Judgment on Request for Protection of Legality) of the Criminal Procedure Code, when the Supreme Court determines that the request for protection of legality is grounded, it renders a judgment by which, taking into account the type of violation, it (i) modifies the final decision; (ii) annuls the decision of the basic court and of the higher court in whole or in part and remands the case for retrial; or (iii) is limited only to finding the violation of the law, while based on paragraph 2 of this article, which has also been contested before the Court, the Supreme Court may also exceptionally decide to the detriment of the defendant, if the final decision is “manifestly inappropriate or based on serious error”. Following from the above, the Judgment clarifies that, in principle, in circumstances in which the Supreme Court assesses that the request for protection of legality filed to the detriment of the defendant is grounded, it is limited only to finding the violation of the law, rendering thus a declaratory decision. Having said this and exceptionally, the latter (i) modifies the final decision; or (ii) annuls in whole or in part the decision of the basic court and of the higher court, and remands the case for retrial to the detriment of the defendant, when a decision is “manifestly inappropriate” or “based on serious error”. According to the clarifications given, the circumstances in which the decision-making of the Supreme Court may result to the detriment of the defendant, encompasses very serious legal, procedural or substantive violations, which call into question in their entirety the integrity of the decision-making that resulted into the final decision. According to the clarifications provided in the Judgment, any decision-making by the Supreme Court, including based on legal mechanisms to ensure consistency in its case law, to the detriment of the defendant, must be in full compliance with the exceptions provided by the case-law of the European Court of Human Rights, pursuant to the obligations stemming from article 53 [Interpretation of Human Rights Provisions] of the Constitution and may be subject to the assessment of the Constitutional Court under the provisions of paragraph 7 of article 113 [Jurisdiction and Authorized Parties] of the Constitution. Finally, based on the case-law of the European Court of Human Rights, the Judgment emphasizes the fact that in the event that the Supreme Court, through the request for protection of legality, exceptionally, finds that the contested decision is “manifestly inappropriate or based on serious error”, it is obliged to offer the parties all the procedural safeguards guaranteed by the Constitution and the European Convention on Human Rights. The Court, unanimously, decided to declare the referral admissible and found (i) unanimously, that the phrasing “or terminating” of paragraph 4 of article 432 (Grounds for Filing a Request for Protection of Legality) of the Criminal Procedure Code, is not contrary to article 29 [Right to Liberty and Security] of the Constitution in conjunction with article 5 (Right to liberty and security) of the European Convention on Human Rights; (ii) unanimously, that paragraph 2 of article 4 (Ne Bis In Idem) of the Criminal Procedure Code, is not contrary to article 34 [Right not to be Tried Twice for the Same Criminal Act] of the Constitution in conjunction with paragraph 2 of article 4 (Right not to be tried or punished twice) of Protocol no. 7 of the European Convention on Human Rights; and (iii) by five (5) votes in favor and four (4) against, that the phrasing “unless if the final decision is manifestly inappropriate or based on serious error” of paragraph 2 of article 438 (Judgment on Request for Protection of Legality) of the Criminal Procedure Code, is not contrary to article 34 [Right not to be Tried Twice for the Same Criminal Act] of the Constitution in conjunction with paragraph 2 of article 4 (Right not to be tried or punished twice) of Protocol no. 7 of the European Convention on Human Rights.
You can read the notification regarding the Judgment by clicking here
You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here
4. KO232/23 and KO233/23
Applicants: Abelard Tahiri and ten (10) other deputies; and KO233/23, with applicants: Besian Mustafa and ten (10) other deputies
Published on: 24 July 2024
Request for constitutional review of Law No. 08/L-180 on amending and supplementing the Law No. 06/L-048 on Independent Oversight Board for Civil Service of Kosovo
The Court assessed the constitutionality of Law No. 08/L-180 on Amending and Supplementing Law no. 06/L-048 on Independent Oversight Board for the Civil Service of Kosovo. The Judgment initially clarifies that the contested Law amends and supplements Law no. 06/L-048 on Independent Oversight Board for the Civil Service of Kosovo, in four main aspects. First, it changes the composition of the Independent Oversight Board from seven (7) to fifteen (15) members, also changing and/or supplementing aspects related to the criteria for appointing members of the Independent Oversight Board and the procedure for their appointment. Secondly, it removes the current legal provision that guarantees decision-making immunity for the members of the Independent Oversight Board. Thirdly, it takes away from the Independent Oversight Board the competence to decide on the complaints of civil servants and/or candidates for civil servants in senior management positions against the Government’s decisions, namely it makes impossible the submission of complaints to the Independent Oversight Board against the decisions of the Government for the abovementioned categories, guaranteeing nevertheless the right of appeal to the competent court in administrative conflict. Fourthly, unlike the law in force on the Independent Oversight Board, the enforceability of the Independent Oversight Board’s decisions is conditioned either on the lack of an appeal with the competent court or, in case of an appeal, on the issuance of a final court decision by the competent court. The applicant deputies of the Assembly contest the aforementioned Law, both in terms of the procedure followed for its adoption, as well as in terms of its content. According to the clarifications given in the Judgment, (i) in the context of the former, the applicants, in essence, claim that the procedure followed for the adoption of the contested Law is contrary to article 77 (Reading of a draft law amending and supplementing a law) of the Rules of Procedure of the Assembly; while (ii) in the context of the second, in essence, they claim that the contested Law is contrary to articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 53 [Interpretation of Human Rights Provisions], 55 [Limitations on Fundamental Rights and Freedoms], 101 [Civil Service] and 142 [Independent Agencies] of the Constitution, among others and essentially, because (i) it violates the fundamental rights and freedoms of civil servants in senior management level by making it impossible for them to complain to the Independent Oversight Board unlike other categories of civil servants, consequently denying them the right to a legal remedy, moreover, taking away at the same time, from the Independent Oversight Board the constitutional competence to ensure the compliance with the rules and principles that regulate the civil service according to the provisions of article 101 [Civil Service] of the Constitution; (ii) violates the decision-making independence of the members of the Independent Oversight Board, by removing the guarantees for immunity in decision-making contrary to article 101 [Civil Service] of the Constitution; as well as (iii) violates the constitutional competencies of the Independent Oversight Board, including the rights of the parties to fair and impartial trial, taking into account that the “enforceable” effect of decisions of the Independent Oversight Board, is eliminated until such time that there is a final decision of the regular courts. The allegations of the applicants, in principle, are supported by the Ombudsperson and the Independent Oversight Board, while they are counter-argued by the Prime Minister of the Republic of Kosovo and the Parliamentary Group of VETËVENDOSJE! Movement. In assessing the constitutionality of the contested Law, the Court initially and among others, elaborates (i) the basic constitutional principles regarding the Independent Oversight Board and its relationship with the executive branch as specified in Chapter VI [Government of the Republic of Kosovo] of the Constitution; (ii) the basic constitutional principles related to equality before the law and the right to an effective legal remedy; and (iii) the principles established by the Court, through its already consolidated case-law related to the functioning and competencies of the Independent Oversight Board that derive from article 101 [Civil Service] of the Constitution, including the decision-making independence of its members, with emphasis but not limited to Court’s Judgments in cases (a) KO171/18 regarding the constitutional review of Law no. 06/L-048 on Independent Oversight Board for the Civil Service of Kosovo; (b) KO127/21 regarding the constitutional review of the Decision [no. 08-V-29] of the Assembly of the Republic of Kosovo of 30 June 2021 for the dismissal of five (5) members of the Independent Board; and (c) KO216/22 and KO220/22 regarding the constitutional review of Law no. 08/L-197 on Public Officials. In applying the aforementioned principles in assessing the constitutionality of the contested Law, the Judgment initially emphasizes that (i) article 101 [Civil Service] of the Constitution establishes an Independent Oversight Board for the civil service with the constitutional competence to ensure compliance with the rules and principles that regulate the civil service in the Republic of Kosovo; (ii) the case-law of the Court, over the years, has clarified the difference between the Independent Oversight Board and Independent Agencies established based on article 142 [Independent Agencies] of the Constitution, emphasizing, in principle, that while the establishment, including the functioning and the competences of the Independent Agencies, is within the competence of the Assembly, the Independent Oversight Board is a body established by the Constitution and the constitutional powers of the latter cannot be violated through the laws of the Assembly; and (iii) while the Assembly has the full competence to specify through laws the role of the Independent Board in the exercise of its function to ensure compliance with the rules and principles that regulate the civil service, the Assembly must respect the independence and competence of the Board according to the constitutional provisions.
(i) the exclusion of the decision-making competence of the Independent Oversight Board related to the Government’s decisions regarding candidates for admission to and civil servants in senior management positions
The Judgment initially clarifies that articles 2, 7 and 8 of the contested Law, amend and supplement articles 6 (Functions of the Board), 16 (Review of the Complaints) and 19 (Oversight procedure for the selection of senior management and management level Civil Servants) of the basic Law, repealing the competence of the Independent Oversight Board for (i) reviewing complaints against the Government’s decisions for the selection of civil servants in senior management positions; as well as (ii) the supervision of the selection procedure of civil servants in senior management positions. According to the clarifications given in the Judgment, the aforementioned articles raise two (2) constitutional issues, namely (i) the constitutional competence of the Independent Oversight Board to ensure compliance with the rules and principles that regulate the civil service in the Republic of Kosovo; and (ii) equality before the law regarding the right to a legal remedy in the context of candidates for admission to and civil servants in senior management positions compared to other categories of civil service. In the context of the first issue, the Judgment places emphasis on its consolidated case-law, including in (i) its Judgment in case KO171/18, whereby it elaborated the competence of the Independent Oversight Board for ensuring compliance with civil service rules regarding all categories of civil servants, without exception; and (ii) its Judgment in case KO216/22 and KO220/22, in which the constitutionality of the Law on Public Officials was reviewed, and which, in defining the civil service, also includes the officials, namely the civil servants of senior management level and moreover, in elaborating the right to appeal to the Independent Oversight Board, does not distinguish between the categories of civil servants, specifying/granting to all the categories of civil service the right to a legal remedy to the Independent Oversight Board for any action or failure to act of the authorities, which violates the rights or legal interests stemming from the employment relationship in the civil service. According to the clarifications given in the Judgment, the Constitution determines the competence of the Oversight Board to ensure compliance with the rules and principles that regulate the civil service, and such competence applies to all categories which, based on the applicable laws, fall within the scope of the civil service. Moreover, the Independent Oversight Board is an institution established in the constitutional chapter of the Government of the Republic of Kosovo, and the contested Law excludes the decision-making competence of the Independent Board only in relation to the Government’s decisions. Furthermore and, in the context of the second issue, the Judgment, applying the principles originating from the case-law of the Court, including the one of the European Court of Human Rights, regarding equality before the law and the right to legal remedy, among others, clarifies that based on the applicable laws, candidates for and the civil servants of senior management category, fall under the definition of civil service and as such, are in “relatively similar and/or analogous” positions with other categories of civil service. Consequently, the differences established in the contested Law in the context of equality of access to legal remedies, namely access to the assessment and decision-making of the Independent Oversight Board, results into a “difference in treatment”, and which, while it is “prescribed by law ” and may pursue a “legitimate aim”, is not proportionate to the aim pursued, among others, because despite the constitutional competence of the Independent Oversight Board to ensure compliance with civil service rules, and unlike all other applicable laws, including the Law on Public Officials, excludes from the supervision of the Independent Oversight Board, only the aforementioned category and that only in relation to the decision-making of the Government of the Republic of Kosovo. As a result, and according to the details given in the Judgment, the Court held that articles 2, 7 and 8 of the contested Law are not in compliance with paragraph 1 of article 24 [Equality Before the Law] and article 32 [Right to Legal Remedies] in conjunction with paragraph 2 of article 101 [Civil Service] of the Constitution.
(ii) removing the immunity for decision-making of the members of the Independent Oversight Board
The Judgment initially clarifies that article 6 of the contested Law removes in its entirety paragraph 3 of article 11 (Term of office for members of Board) of the basic Law, which determines that the President and members of the Independent Oversight Board enjoy immunity from criminal prosecution, civil lawsuits or dismissal regarding the decision-making within the framework of constitutional and legal functions of the Board. In the aforementioned context, the Judgment emphasizes the fact that the decision-making independence of the members of the Independent Oversight Board has been specifically examined through two Court’s Judgments, in cases KO171/18 and KO127/21, respectively. Through these two Judgments, the Court, among others, has emphasized that (i) the constitutional independence of the Independent Oversight Board is conditioned by the decision-making independence of its members; (ii) the constitutional independence of the Independent Oversight Board in the exercise of the functions established by the Constitution and the law, attributes decision-making immunity to the members of the Board within its constitutional and legal functions, from criminal prosecution, civil lawsuits or dismissal, which enables them to be free to exercise their functions independently and without fear of consequences for the performance of their functions in relation to “the views expressed, the way of voting or the decisions taken during their work”; (iii) despite the fact that the Assembly has the constitutional competence to supervise the Independent Oversight Board according to the provisions set forth in the law approved by the Assembly itself, including the possibility of dismissing its members in the circumstances specified in the applicable law on the Independent Oversight Board, the members of the Board cannot be dismissed for decision-making. According to the clarifications given in the Judgment, such a possibility, based on which the members of the Independent Oversight Board could be dismissed for their decision-making, would deeply infringe upon the functional independence of the Independent Oversight Board and the very purpose of its existence, according to the provisions of article 101 [Civil Service] of the Constitution and applicable laws. Furthermore, the Judgment reiterates the fact that the legality of the decisions of the Independent Oversight Board is subject to the control of the judicial branch and not the legislative and/or executive branches of government. As a result, and according to the details given in the Judgment, the Court held that article 6 of the contested Law is not in compliance with paragraph 2 of article 101 [Civil Service] of the Constitution.
(iii) taking away “enforceability” from decisions of the Independent Board until the final decision of the regular courts
The Judgment first clarifies that articles 9, 10 and 11 of the contested Law, amend and supplement articles 21 (Board’s decision), 22 (Initiation of the administration conflict) and 23 (Procedure in case of non-implementation of the Board decision) of the basic Law, determining that the decisions of the Independent Oversight Board are not “enforceable”, consequently determining that they become “enforceable” (i) only after the expiry of the deadlines for appeal before the regular courts; or (ii) in case of an appeal, only after the decision of the regular courts has become final. In the aforementioned context, the Judgment elaborates the Court’s consolidated case-law, including in the context of individual referrals and which have raised, in essence, the importance of the “enforceability” of the decisions of the Independent Oversight Board, including in the context of the constitutional guarantees for fair and impartial trial and the effectiveness of the legal remedy. Based on this case-law, the Court in a continuous and consistent manner, has clarified that the decisions of the Independent Oversight Board, which has the characteristics of a “quasi-tribunal” in the context of the obligations stemming from 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, are “final, binding and enforceable” decisions in administrative proceedings. The Judgment further reiterates that the Independent Oversight Board has full jurisdiction to decide on matters related to ensuring compliance with civil service rules, while the review/assessment of the legality of these decisions, is subject to the regular courts and which, based on the applicable law for administrative conflicts, have full competence to suspend the enforcement of the Board’s decisions through the imposition of interim measures, when, based on their assessment, the criteria defined by law have been met. According to the clarifications provided, taking away the “enforceability”, from all decisions of the Independent Oversight Board, insofar as the courts have not suspended their execution according to the provisions of the applicable laws, undermines the effectiveness of the constitutional competence of the Independent Oversight Board to ensure the compliance with the rules and principles that regulate the civil service of the Republic of Kosovo in accordance with the provisions of article 101 [Civil Service] of the Constitution. As a result, and according to the details given in the Judgment, the Court held that articles 9, 10 and 11 of the contested Law are not in compliance with paragraph 1 of article 31 [Right to Fair and Impartial Trial] of the Constitution. In the end, the Judgment clarifies that based on the applicants’ allegations, it results that (i) the procedure followed for the adoption of the contested Law, has not been argued to be in contradiction with the Constitution; and (ii) articles 3, 4 and 5 of the contested Law, which amend and supplement articles 8 (Composition of the Board), 9 (Criteria for the Appointment of the Board’s members) and 10 (Appointment procedures of the members of the Board) of the basic Law, have not been argued to be in contradiction with the Constitution.
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5. KO46/23
Applicant: Abelard Tahiri and nine (9) other deputies
Published on: 29 July 2024
Request for constitutional review of Law no. 08/L-121 on the State Bureau for Verification and Confiscation of Unjustified Assets
The Court assessed the constitutionality of Law No. 08/L-121 on the State Bureau for Verification and Confiscation of Unjustified Assets. The Judgment initially clarifies that the contested Law establishes the State Bureau for the Verification and Confiscation of Unjustifiable Assets (the State Bureau), introducing into the legal order of the Republic of Kosovo, the concept of civil confiscation of unjustifiable assets, respectively and in essence, the confiscation of assets without the need to prove in criminal procedure that the relevant property was acquired through the commission of a criminal offense. For this purpose, the contested Law establishes the procedure for the verification and confiscation of the assets acquired unjustifiably by official persons and third parties, namely by any natural or legal person to whom the property of the official person has been transferred or who has or may have had a legal interest in the property of the parties in the proceedings. According to the provisions of the contested Law, assets acquired in an unjustified manner are subject to verification starting from 17 February 2008, in principle, within ten (10) years from the moment when the relevant officials cease exercising their functions, with the specification that, exceptionally, assets acquired after the end of exercising the official function may as well be subject to the verification of the assets. The above-mentioned Bureau has the competence to assess the amount of assets of each official compared to the lawful income and in case the assessment results into a discrepancy between the income and the assets exceeding the value of twenty-five thousand (25,000) Euros, may propose the securing of property through an interim measure and afterwards the confiscation of the same following the respective court decision. Considering that the procedure of verification and confiscation of unjustifiable assets is independent from the criminal procedure, the standard of proof is not the criminal standard of “reasonable doubt”, but the civil standard of “balance of probabilities” and according to which, the asset is qualified as un/justifiable, if based on the evidence, the court “believes that something is more likely to be or have happened than not”. Furthermore, and while the State Bureau has the initial burden of proving that the assets whose confiscation is proposed are unjustified, the burden of proving that the assets are in fact justifiable falls on the individual. It should also be noted that, while the State Bureau has full competence to verify and propose the confiscation of assets, it is in the courts’ competence to decide whether the disputed assets are to be subject to confiscation. The Judgment also clarifies that for the purpose of verifying and proposing the confiscation of unjustifiable assets, the contested Law establishes the State Bureau, led by the Director General, with a seven (7) year mandate, and is overseen by an Oversight Committee composed of (i) a judge of the Supreme Court appointed by the President of the Supreme Court, in the capacity of the chair of the Committee; (ii) the Auditor General; (iii) the Director of the Agency for the Prevention of Corruption; (iv) deputy Ombudsperson; and (v) the Director of the Financial Intelligence Unit. This Committee, which makes decisions with the majority of its members within the decision-making quorum of four (4) of them, has full oversight competence over all functions of the State Bureau, including the adoption of all sub-legal acts. The essence of the applicants’ allegations is related to the violation (i) of the principles of the rule of law and of legal certainty, as essential values of the constitutional order; and (ii) of the fundamental rights and freedoms guaranteed by the Constitution, including the applicable international instruments. In essence, the applicants raise three categories of issues before the Court. Firstly, they allege that the mechanisms established through the contested Law for the verification and confiscation of assets do not entail sufficient guarantees for the protection of fundamental rights and freedoms, especially in the context of (i) equality before the law, in view of the fact that the contested Law distinguishes between official persons and other citizens of the Republic of Kosovo and between official persons themselves who exercised functions before and after 17 February 2008; (ii) procedural guarantees related to the verification and confiscation of assets, including the right to a fair and impartial trial, namely equality of arms, presumption of innocence, burden of proof, right not to incriminate oneself and the legal remedies; and (iii) the property rights of the verification subjects. Secondly, they allege that the retroactive application of the law, in addition to the violation of fundamental rights and freedoms, also violates the principle of legal certainty and the values of the Constitution. Thirdly, the applicants allege the violation of the oversight competences of the Assembly in relation to Independent Agencies, because in the circumstances of the present case, the oversight competence of the Assembly has been transferred to an Oversight Committee, which is also characterized by constitutional incompatibility of functions, with emphasis on the deputy Ombudsperson, and lack of independence of the State Bureau, including in the context of the manner of electing its Director General. The applicants’ allegations are opposed by the Ministry of Justice and the Parliamentary Group of the VETËVENDOSJE! Movement, in essence, emphasizing that (i) the contested Law contains sufficient procedural guarantees for the protection of fundamental rights and freedoms and that the content of the same has also been positively evaluated by the Opinions of the Venice Commission; (ii) the difference between official persons and other citizens of the Republic of Kosovo pursues a legitimate aim of fighting corruption in the public sector, furthermore that the retroactive application of the law is not in contradiction with the principle of legal certainty; while (iii) they clarify that the date 17 February 2008 is also related to the “legal circulation of property through bank transactions”, which for the purposes of this law, constitutes decisive evidence in terms of assets’ verification; (iv) the establishment of the Oversight Committee does not affect the oversight competence of the Assembly, moreover, the transfer of the competence for the election of the Director General from the Assembly to the Oversight Committee, as an anti-deadlock mechanism in case the election procedure for the Director fails at the Assembly, is a solution in accordance with the recommendations of the Venice Commission. The Court, in its judgment, namely in the light of elaborating the concept of civil confiscation of unjustified assets based on the international standard and the respective practice of countries that apply civil confiscation, initially emphasizes the importance of the legitimate aim of the contested Law for the public interest and the fight against corruption in the public sector. Having said this, in terms of assessing and examining the applicants’ allegations, as well as the counter-arguments of the interested parties, the Judgment, among others, also elaborates (i) the general principles pertaining to the concept of civil confiscation of unjustified assets according to international practice; (ii) the case-law of the European Court of Human Rights (ECtHR) pertaining to the confiscation of assets and the burden of proof, including in the context of “interference” with the property rights of individuals as a result of confiscation of assets in civil proceedings; (iii) the relevant documents approved at the level of the United Nations, the European Union and the Council of Europe, including all the Opinions of the Venice Commission regarding the civil confiscation of assets, with an emphasis on aspects related to institutional design and corresponding guarantees for committees/agencies responsible for civil confiscation of unjustifiable assets and issues related to the burden of proof and retroactive applicability of the law; and (iv) two (2) Opinions of the Venice Commission on Kosovo regarding the contested Law adopted on 17-18 June 2022 and on 16-17 December 2022, respectively.
(i) Scope of the Law – equality before the law, legal certainty and proportionality of the retroactive application of the law in relation to the individual’s burden of proof
The Judgment initially clarifies that in the context of its scope, the contested Law, in principle, applies to the assets acquired in an unjustified manner, throughout the period of exercising the function of public officials from 17 February 2008 and within ten (10) years from the moment when the relevant subjects cease exercising their functions and exceptionally, to the assets acquired after the period of exercising the public function, but not longer than five (5) years after the end of the official person’s public function. According to the clarifications provided, these regulations, in essence, raise three issues at constitutional level, namely (a) the principle of equality before the law among citizens of the Republic of Kosovo in light of the fact that only public officials and third parties related to them are subject to assets verification, including the equality before the law of public officials themselves, considering that subject to verification are only the assets acquired by public officials after 17 February 2008; (b) the principle of legal certainty in the context of the retroactive applicability of the contested Law starting from 17 February 2008, including in relation to the burden of proof which, after the proposal of confiscation of assets by the State Bureau, retroactively, falls upon the individual; and (c) the principle of legal certainty in the context of “clarity” and “foreseeability” of the provisions of the contested Law which regulate the period of verification of unjustifiable assets during the exercise and after the end of office of the relevant officials. The assessments and the findings of the Court pertaining to the above issues will be succinctly presented as follows.
(a) equality before the law between public officials and third parties in relation to other citizens of the Republic regarding the verification of unjustifiable assets, including before and after 17 February 2008
In the context of the (un)equal treatment between public officials and third parties, in relation to other citizens of the Republic with regard to the verification of unjustifiable assets, including before and after 17 February 2008, the Judgment, based on the Court’s case-law and that of the ECtHR, initially clarifies that the aforementioned categories are in “relatively similar and/or analogous situations” and that the contested law treats these categories differently, resulting in “difference in treatment”. Having said that, according to the clarifications provided in the Judgment, this “difference in treatment” does not result in violation of equality before the law because it pursues a “legitimate aim” of public interest and is “proportionate” to the aim pursued, among others, because based on the public interest of fighting corruption in the public sector, the contested Law focuses on the category of citizens who were paid from the state budget, namely from the taxpayers of the Republic of Kosovo.
(b) the retroactive application of the law in relation to the burden of proof related to the un/justifiability of the assets
In the context of the retroactive applicability of the contested Law in relation to the principle of legal certainty, the Judgment, based on the ECtHR’s case-law, the Opinions of the Venice Commission related to the civil system of confiscation of unjustified assets and the case-law of the other constitutional courts, clarifies that, in principle, the retroactive application of the law in the field of civil and administrative law is exceptionally possible, as long as it is in the public interest and is proportional to the aim pursued. According to the clarifications given, the retroactive applicability of the contested Law in the context of the verification of unjustifiable assets, is in the public interest of the fight against corruption. The latter makes it necessary to act not only in the future, but also to address the illegal acquisition of assets in the past, especially since, in such circumstances, there is no intervention exclusively in past events, but in the facts in continuation as well because ownership of illegal assets began in the past, but continues further, while the individual’s expectation of being able to keep the assets acquired illegally does not weigh against the public interest in combating corruption. Having said this and according to the clarifications provided, it remains contested whether the retroactive application of the law for a period longer than fifteen (15) years, namely from 17 February 2008, is proportional to the fundamental rights and freedoms of the subjects of verification in the context of the burden of proof and which, according to the ECtHR’ case-law but also to the Opinions of the Venice Commission, is necessary in the context of the reasonableness and/or “objective possibility” of the individual to obtain and present the necessary evidence in support of the argument that the assets subject to verification and/or confiscation, are justifiable. According to the clarifications given in the Judgment, while in its proposal for the confiscation of assets, the State Bureau is supported by the obligation of cooperation of all public authorities in the Republic of Kosovo, the individual bears the burden of proving the contrary, namely proving the justifiability of the assets, under circumstances which, the contested Law, unlike similar laws in states that have adopted the system of civil confiscation of property, does not contain any guarantee for the individual to prove the “objective impossibility” of possessing a piece of evidence over a period of time which, in principle, exceeds the deadlines prescribed in the applicable laws for keeping/saving data/records and/or access to necessary documentation/evidence. According to the clarifications provided, in order to assess the proportionality in the context of the period of retroactive applicability of the contested Law and the individual’s burden of proof which is based on the balance of probabilities, respectively according to the definition of the law, in the belief that “something is more likely to be, or to have happened than not”, the Judgment, among others, emphasizes the context of the state building of the Republic of Kosovo, including the adoption and characteristics of the applicable laws that are relevant to prove the relationship between the legal income and the acquired assets in the context of (i) the personal income tax system; (ii) pension system; (iii) the legal obligation to circulate money through bank transactions; (iv) declaration of assets; and (v) confiscation of assets acquired through criminal offences. According to the clarifications given, in principle, it results that the applicable laws do not provide for obligations to store/maintain data for the period longer than ten (10) years and which, therefore, exceeds the period of retroactive application of the contested Law. Therefore, and according to the clarifications provided, despite the fact that the contested Law pursues the legitimate aim of public interest, the same, in the Court’s assessment, does not reflect a reasonable balance between the state and the individual, among others, because (i) the period of retroactive applicability of the law , in principle, exceeds the time limits defined in the relevant applicable laws in the context of keeping records and/or data, (ii) in circumstances in which the entire state administration is obliged to cooperate with the State Bureau, while the burden of proof about the justifiability of the contested assets falls on the individual, and (iii) who does not benefit from a reasonable procedural guarantee, based on which, he/she could argue before the competent court the “objective impossibility” to obtain and/or present a piece of evidence in favor of the justifiability of the assets which are subject to verification and/or confiscation. As a result, the Court held that point 2.1 of paragraph 2 of article 2 (Scope) in conjunction with paragraph 2 of article 34 (Hearing in the first instance) of the contested Law, is not compatible with paragraph 1 of article 7 [Values] of the Constitution and paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of Property) of Protocol no. 1 of the European Convention on Human Rights. According to the clarifications given in this Judgment, in addressing the violations noted above, through amendments and/or supplementation of the aforementioned provisions, the Assembly must ensure that the retroactive application of the law is balanced and/or proportional to the burden of proof, either (i) by determining reasonable retroactive periods based on the analysis and evaluation of the applicable laws in the Republic of Kosovo, including in the context of access to data that are relevant for proving the un/justifiability of assets; and/or (ii) by providing procedural guarantees in the context of the individual’s burden of proof, which would enable the latter to argue before the respective courts in relation to the “objective impossibility” of obtaining the relevant evidence.
(c) the principle of legal certainty in the context of “clarity” and “foreseeability” of the provisions of the contested Law, which regulate the period of verification of immovable property during the exercise and after the end of office of the respective officials
The Judgment emphasizes that, based on the ECtHR’s case-law, the process of verification and/or confiscation of assets constitutes an “interference” with the property rights of the individual and as such, must be prescribed by law and proportionate to the aim pursued. In this context, the Judgment also underlines the necessity of “clarity” and “foreseeability” of the legal provisions that may affect the property rights of an individual, including retroactively, as in the circumstances of the present case. According to the clarifications provided, the contested Law establishes the possibility of verification and/or confiscation of the assets acquired during the exercise of the function, and exceptionally after the end of office, which in the assessment of the Court, is in the general interest of fighting corruption in the public sector. Having said this, according to the clarifications given, in the context of the period during which the assets can be subject to verification and/or confiscation, the respective provisions of the contested Law, among others, do not clarify in a precise and predictable manner the time periods during which the acquired assets can be subject to verification, including the time periods during which the property verification procedure can be initiated, both in terms of the assets acquired during the exercise of the function and the assets acquired after the end of the relevant office. According to the clarifications provided, the lack of such clarity allows the public authorities, including the State Bureau, to interpret the time limits stipulated in the contested Law, at their full discretion, in violation of the principle of legal certainty and in violation of fundamental rights and freedoms of the individual, including, by making it impossible for them to adequately regulate their respective behavior and expectations. As a result, the Court held that point 2.2 of paragraph 2 of article 2 (Scope) in conjunction with paragraph 3 of article 22 (Period of asset verification) of the contested Law, are not in compliance with paragraph 1 of article 7 [Values] of the Constitution. According to the clarifications provided in this Judgment, in addressing this violation, the Assembly, through amendments and/or supplementation of the aforementioned provisions, must ensure that the norms that determine the time periods within which the State Bureau can verify the assets acquired during and after the exercise of the function, including those within which investigations and respective proceedings can be initiated, must be completely “clear” and “foreseeable”.
(ii) Procedural guarantees in the context of verification and/or confiscation of unjustifiable assets
The Judgment clarifies that the contested Law, among others, regulates the procedure of verification and confiscation of unjustifiable assets, including the rights and obligations of the parties to the proceedings and the authorizations of the State Bureau, including in the context of (i) initiation of the proceedings; (ii) collecting information for the purpose of verification; (iii) obligation to cooperate; (iv) proceedings before the regular courts; and (v) legal remedies and judicial protection of rights. The Judgment analyzes and clarifies all the above issues in the context of the guarantees deriving from articles 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 36 [Right to Privacy] and 54 [Judicial Protection of Rights] of the Constitution, but also those that derive from the ECtHR’s case-law and the opinions of the Venice Commission, and in principle, finds that the contested Law in conjunction with other applicable laws, contain sufficient procedural guarantees for the parties to the proceedings. Having said that, taking into account the wording of the provisions of the contested Law, the Judgment emphasizes three primary issues, namely (i) the right to not incriminate oneself; (ii) the right of the party to be notified of all the proceedings conducted in the context of the verification of the assets, including in relation to the imposition of security measures on the disputed assets; and (ii) the principle of legal certainty. In the context of the first issue, namely the obligation to cooperate in relation to the right to not incriminate oneself, the Judgment, among others, clarifies that the State Bureau is established as an Independent Agency according to the provisions of article 142 [Independent Agencies] of Constitution, based on which, every organ, institution or other entity exercising legal authority in the Republic of Kosovo is bound to cooperate with and respond to their requests during the exercise of their legal competencies, in a manner prescribed by law. Therefore, according to the clarifications given, the obligation in the context of the cooperation of public authorities with the State Bureau as defined by the contested Law, is not disputable. On the other hand, and in the context of the obligation of individuals to cooperate, including the parties to the proceedings, the Judgment, among others, clarifies that the contested Law (i) contains the guarantee based on which, for natural persons, including the subject of verification, the obligation to cooperate extends to the extent that “the right to privacy and the right to not incriminate oneself are not violated” and that the assessment of such a proportion is within the competence of the competent court; moreover, that (ii) the consequence of refusal to cooperate, namely the possibility of criminal report for the criminal offense “failure to execute court decisions”, according to the provisions of the Criminal Code, does not extend to the natural person, but only to public authorities and/or natural and legal persons with public authorizations. In the context of the second and third issues, namely the obligation to notify the party, including with regard to the imposition of security/interim measures and the principle of legal certainty, the Judgment, among others, emphasizes that (i) the contested Law, in principle, provides sufficient guarantee within the principle of equality of arms and that of adversarial procedure, as it enables the subject of verification, access to the information received and processed, while the limitation to their access can only be determined by the competent court, a decision which can be appealed by the respective subject; (ii) based on the principles stemming from the case-law of the ECtHR, the party must be informed throughout the process, including in the context of the conducted procedures regarding the imposition of security measures on the disputed assets, and that the imposition of a security/interim measure without the prior notification of the party, is possible only exceptionally under the strict guarantees stemming from the case-law of the ECtHR; and (iii) taking into consideration the principle of legal certainty, including the obligation that the applicable norms are “clear” and “foreseeable”, the rights and obligations of the parties to the proceedings must to be prescribed by law and not through sub-legal acts. The Judgment finally notes that the Court’s assessment that the contested Law, in principle, provides sufficient procedural guarantees for the parties to the proceedings, does not imply the legality and/or constitutionality of the decisions of the State Bureau and/or regular courts. The Judgment refers to article 53 [Interpretation of Human Rights Provisions] of the Constitution, recalling that all public authorities are obliged to interpret fundamental rights and freedoms in compliance with the case-law of the ECtHR.
(iii) Oversight of the State Bureau – transfer of oversight from the Assembly to the Oversight Committee and in/compatibility of the constitutional functions of the Committee members
In the context of the institutional design of the State Bureau, the Judgment, among others, focuses on its three main characteristics, namely (a) the status of the State Bureau in the context of the legal order of the Republic of Kosovo, including the fact that the same is established based on article 142 [Independent Agencies] of the Constitution, but that the oversight of exercising its functions has not been left within the power of the Assembly of the Republic of Kosovo, but rather to an Oversight Committee comprised of representatives of institutions and/or independent agencies; (b) the composition of the Oversight Committee, including the compatibility of the constitutional functions of its members in relation to the nature of responsibilities of this Committee and the powers of the State Bureau; and (c) the manner of election of the Director General of the State Bureau.
(a) the oversight competence of the Assembly in relation to the status of State Bureau
In the context of the establishment of the State Bureau as an independent agency, the Judgment emphasizes the constitutional principles which relate to the form of governance and separation of powers, elaborated through the Court’s case-law over the years, highlighting that in the circumstances of the case at hand, the question is related pertaining to the competent authority to exercise oversight over the State Bureau, namely whether providing an Oversight Committee with the oversight competence over the State Bureau, infringes upon the Assembly’s oversight competence with respect to Independent Agencies established based on article 142 [Independent Agencies] of the Constitution. The Judgment notes that the drafts of contested Law were twice subject of review by the Venice Commission, which, among others, noted that the election and dismissal of the Director General of the State Bureau, could benefit from an external expert committee in order to avoid the politicization of his/her election in a committee of the Assembly, also putting forward the alternative of establishing a pluralistic governing body of the State Bureau composed of representatives of independent institutions, whereas in their second opinion, assigning the oversight competence over the State Bureau to an Independent Committee, was considered an “appropriate” solution. That said, as per the explanations provided in the Judgment, the Assembly oversight competence in relation to public institutions is regulated by the Constitution, and in the context of the oversight of the State Bureau, relevant is the interaction between articles 65 [Competencies of the Assembly] and 142 [Independent Agencies] of the Constitution. In the aforementioned context, the Judgment explains that (i) based on article 142 [Independent Agencies] of the Constitution, Independent Agencies are institutions established by the Assembly based on the respective laws that regulate their establishment, functioning and powers, whereas such provision, not necessarily prescribe the oversight competence of the Assembly in relation to such agencies; whereas (ii) based on article 65 [Competencies of the Assembly] of the Constitution, the Assembly oversees the work of the public institutions that report to the Assembly in accordance with the Constitution and the law. Based on the provided explanations, whilst, in the principle, it is the Assembly that exercises the oversight function over the Independent Agencies, the Assembly, based on the stipulations of paragraph 9 of the aforementioned constitutional article, including based on the Law No.06/L–113 On Organization and Functioning of State Administration and Independent Agencies, is also authorized through respective laws on establishment of Independent Agencies, to delegate/determine such oversight competence to another structure or to an Independent Committee, as is the case in the context of the contested Law. Having said that, as far as the Assembly decides to delegate/determine the oversight competence to another authority, the latter must be in compliance with the constitutional provisions, including those pertaining to the separation and interaction of powers. As per explanations provided in the Judgment, which will be summarized hereinafter, the composition of the Oversight Committee of the State Bureau in the context of its competencies, raises constitutional issues that are related to, among others, incompatibility of the constitutional functions of its members.
(b) the composition of the Oversight Committee in the context of the constitutional functions’ compatibility of its members in relation to the nature of the competencies of the State Bureau
The Judgment recalls that the aforementioned Oversight Committee is comprised of (i) a judge of the Kosovo Supreme Court, nominated by the President of the Supreme Court, who is also the Committee Chair; (ii) the General Auditor of the Republic of Kosovo; (iii) the Director of the Agency for Prevention of Corruption; (iv) a deputy Ombudsperson assigned by the Ombudsperson; and (v) the Director of the Financial Intelligence Unit. The powers of the Oversight Committee, pursuant to the contested Law, are comprehensive, including but not limited to (i) overseeing the work and all activities of the State Bureau; (ii) proposing the election and dismissal of the Director General, including the competence for his/her election; (iii) the review of reports and evaluation of the Director General’s performance as well as overseeing the implementation of his/her competencies; and (iv) adoption of all sub-legal acts. The Judgment further explains that the Deputy Ombudsperson, the General Auditor and the Judge are constitutional categories, hence, their functions, competencies, including the incompatibility of their functions, are established by the Constitution and applicable laws for each category referred to above. According to the clarifications given in the Judgment, and in the analysis of the constitutional competencies of the Ombudsperson, the General Auditor and the Judge, in relation to the nature of the competences that are assigned to them in the exercise of their functions as members of the Oversight Committee of the State Bureau, including in the context of the principles stemming from the relevant opinions of the Venice Commission and the Consultative Council of the European Judges of the Council of Europe, the Court has assessed that the exercise of competences as members of the State Bureau Oversight Committee, for the Deputy Ombudsperson, the General Auditor and the Supreme Court Judge, is incompatible with their functions and competences as provided for in the respective provisions of the Constitution of the Republic of Kosovo. More precisely and pertaining to the Ombudsperson, namely his/her deputy, the Judgment elaborates on the constitutional and legal functions of the Ombudsperson, with an emphasis on the oversight competence this institution has pertaining to the protection of the rights and freedoms of individuals from unlawful or improper actions or failures to act of public authorities, including the State Bureau itself, pursuant to the provisions of article 132 [Role and Competencies of the Ombudsperson] of the Constitution. The Judgment also clarifies the role of the Deputy Ombudsperson within the Ombudsperson Institution, including the fact that based on Law No. 05/L-109 on Ombudsperson, the same may be assigned additional functions. Having said that, the Judgment also emphasizes that the Constitution of the Republic of Kosovo, namely paragraph 3 of article 134 [Qualification, Election and Dismissal of the Ombudsperson], deals specifically and identically with the incompatibility of the functions of the Ombudsperson and his/her deputies, providing, among others, that they cannot exercise any political, state or private professional activity. According to the clarifications given, the involvement of the Deputy Ombudsperson in the capacity of a member of the State Bureau Oversight Committee, namely his/her decision-making and oversight authority in a state institution that, among others, will be responsible for the verification of unjustified assets and the proposal for their confiscation in civil proceedings, which, including as per the case-law of the ECtHR, raises fundamental constitutional issues in terms of the necessary balance between the public interest and fundamental rights and freedoms, raises serious issues of compatibility with the Ombudsperson’s constitutional mandate to oversee and protect the rights and freedoms of individuals from unlawful and improper actions or failures to act of public authorities, including the State Bureau itself. In fact, the exercise of the oversight competence by the Ombudsperson according to the provisions of article 132 [Role and Competencies of the Ombudsperson] of the Constitution, would involve a public authority, in the decision-making of which, the Ombudsperson, namely his/her deputy has participated. Consequently and taking into account (i) the oversight competence of the Ombudsperson in relation to all public authorities in the context of fundamental rights and freedoms; and (ii) the nature of the competences of the State Bureau Oversight Committee members, in the assessment of the Court, the participation of the Deputy Ombudsperson in the Oversight Committee, with comprehensive decision-making competences in relation to the State Bureau, would infringe the constitutional independence of the Ombudsperson in overseeing the State Bureau in the context of its specific constitutional competence pertaining to the protection of the rights and freedoms of individuals from unlawful and improper actions or failures to act of public authorities. Furthermore, in the context of the General Auditor of the Republic of Kosovo, the Judgment elaborates the constitutional and legal functions of the Auditor-General, as the highest institution of economic and financial control, based on article 136 [Auditor-General of Kosovo] of the Constitution, as well as the competence to audit the economic activity of public institutions and the use and safeguarding of public funds by central and local authorities, as stipulated by article 137 [Competencies of the Auditor-General of Kosovo] of the Constitution. As explained, the competence of the Auditor-General to audit the activity of public authorities and the use of public funds by them, does not depend on a legal provision nor the composition of the decision-making bodies, since it is a matter that is regulated at the level of the Constitution and which, applies to all public authorities in the Republic of Kosovo, without exception, consequently including the State Bureau itself. In this context, the Judgment emphasizes that the decision-making of the Auditor-General in the capacity of the member of the Oversight Committee with respect to the budget related issues of the State Bureau, would infringe the constitutional competence of the Auditor-General to audit the economic activity of the State Bureau, as stipulated by article 137 [Competencies of the Auditor-General of Kosovo] of the Constitution. The Judgment recalls that it is precisely the role of the Auditor-General as the highest institution of economic and financial control in the Republic of Kosovo, which has also resulted in the specified provisions of the applicable law on the Auditor-General, and according to which, the Auditor-General and its employees, cannot exercise any other function at any level of the public sector. Consequently and taking into account (i) the oversight competence of the Auditor-General in relation to all public authorities in the context of economic and financial control; and (ii) the nature of the competences of the members of the State Bureau Oversight Committee, including the fact that they also evaluate the performance of the Director General, review of his/her work reports, including in the context of the management of the Bureau’s budget, in the Court’s assessment, the participation of the Auditor-General in the Oversight Committee, with comprehensive decision-making competences, including in the context of financial management, would infringe the constitutional independence of the Auditor-General in overseeing the State Bureau in the context of the management and use of public funds as provided for by articles 136 [Auditor-General of Kosovo] and 137 [Competencies of the Auditor-General of Kosovo] of the Constitution. In the end and pertaining to the Supreme Court Judge, in the capacity of the Oversight Committee Chair of the State Bureau, the Judgment recalls the principles stemming from the Constitution in the context of the separation and balance of powers, as elaborated through its case-law over the years, including the incompatibility of the functions of judges with other state functions. For the purposes of this analysis, the Judgment elaborates, among others, (i) the international principles and standards related to the independence and impartiality of the function of the judge and the incompatibility of the exercise of other functions outside the judicial system, including the Bangalore Principles adopted at the level of the United Nations, the Recommendations of the Committee of Ministers of the Council of Europe, the opinions of the Consultative Council of European Judges and the relevant Opinions of the Venice Commission; (ii) the comparative analysis of the Constitutions in the context of regulating the incompatibility of the function of a judge with other state functions; and (iii) the case-law of other Constitutional Courts related to the interpretation of the incompatibility of a judge’s function. The Judgment, among others, emphasizes that the Constitution of the Republic stipulates the exercise of additional state functions for the judges of the Republic of Kosovo, in two cases, namely the functions (i) in the Kosovo Judicial Council; and (ii) the Central Election Commission. In all other cases, in its article 106 [Incompatibility], the Constitution specifies that (i) a judge may not perform any function in any state institution outside of the judiciary, be involved in any political activity, or be involved in any other activity prohibited by law; and (ii) judges are not permitted to assume any responsibilities or take on any functions that would in any way be inconsistent with the principles of independence and impartiality of the role of a judge. According to the clarifications provided, while the aforementioned provisions provide for the possibility of additional functions for the judges of the Republic of Kosovo as regulated by specific laws and/or procedures defined by the Kosovo Judicial Council, the Constitution clearly entails a prohibition for the judges to exercise any function in state institutions “outside the judiciary”. According to the clarifications given in the Judgment, such a wording in the Constitution includes the obligation to assess the compatibility of the function of the judge with the function of chairing the Oversight Committee of an independent agency, namely the State Bureau, including in the context of the competences of this Committee and the fact, namely the determination on whether the State Bureau can be considered a state institution within the judiciary for purposes of compatibility of functions. According to the provided clarifications, and taking into account, (i) the institutional nature of the State Bureau and the Bureau’s relationship with the courts, namely the judicial branch; and (ii) the nature of comprehensive powers exercised by the chairperson of the Bureau’s Oversight Committee, namely the judge of the Supreme Court; (iii) the fact that the State Bureau cannot qualify as a state institution within the judiciary for the purposes of the formulation of article 106 [Incompatibility] of the Constitution, because the relationship between the State Bureau and the judicial branch, according to the contested Law, is of an oversight nature, namely, the decision-making of the Bureau in the context of verification and the proposal for the confiscation of assets is always subject to the control and decision-making of the courts, in the assessment of the Court, the function of the judge of the Republic of Kosovo is not compatible with the competence of chairing the Oversight Committee of the State Bureau based on the provisions of article 106 [Incompatibility] of the Constitution. According to the clarifications given in this Judgment, in addressing the above aspects, the Assembly, through amendments and/or supplementations of the aforementioned provisions, to the extent that it chooses not to exercise its own oversight function over the State Bureau, it must establish the composition of the Oversight Committee of the State Bureau, in such a way so that all the necessary guarantees for the independence of this institution are respected, while at the same time the constitutional provisions pertaining to the incompatibility of the functions and/or oversight competences of the constitutionally independent institutions, are equally respected.
(c) the manner of election of the Director General of the State Bureau
The Judgment also elaborates the manner of election of the General Director of the State Bureau, and who, according to the provisions of the contested Law, is elected by the Assembly, with the majority of votes of all deputies present and voting, however, if the Assembly fails to elect the Director in two rounds of voting, after two competitions/public announcements, the competence to elect the General Director passes to the Oversight Committee. Such a regulation, according to the provided explanations, in principle, raises two contentious issues, namely (i) the election of the Director General by the Assembly only with a simple majority; and (ii) the anti-deadlock mechanism for the transfer of this competence to the Oversight Committee, in case of failure of election in the Assembly. According to the clarifications provided in the Judgment, the election of the Director General with the majority of votes of all the deputies present and voting in the Assembly, is not contrary to the provisions of articles 65 [Competencies of the Assembly] and 80 [Adoption of Laws] of Constitution. Having said this and taking into account the importance of the function of the Director General of the State Bureau, including his/her seven (7) year term of office, the Judgment also recalls the continuous recommendation of the Venice Commission in its opinions on Kosovo, but also in other relevant opinions in the context of the election of the leading structures of the responsible agencies/committees for the civil confiscation of assets, that the election of the Director General should be by a majority of two thirds (2/3) of the deputies. On the other hand, and with regard to the adopted anti-deadlock mechanism, namely the transfer of the competence of election of the Director General to the Oversight Committee, the Judgment clarifies that the manner of election of the holders/members of the Independent Agencies is not specified by constitutional provisions and as a result, the establishment of the manner of election of the Director General of the State Bureau, based on paragraph 1 of article 142 [Independent Agencies] of the Constitution, is a competence of the Assembly, also recalling that insofar as the constitutional norms have not been infringed, the evaluation of the selected public policy that has led to the adoption of a certain law/provision, is not within the competence of the Court.
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6. KI172/23
Applicant: Rejhane Ceka, Fiknete Ceka, Lejlane Ceka and Sara Ceka
Published on: 30 July 2024
Request for constitutional review of Decision [Rev. no. 216/2023], of 19 June 2023, of the Supreme Court of the Republic of Kosovo in conjunction with Judgment [Ac. no. 3023/2020], of 7 April 2023, of the Court of Appeals of the Republic of Kosovo
The Court assessed the constitutionality of Decision [Rev. no. 216/2023] of 19 June 2023 of the Supreme Court of the Republic of Kosovo in conjunction with Judgment Ac. no. 3023/2020, of 7 April 2023, of the Court of Appeals of the Republic of Kosovo. The Judgment first clarifies the circumstances of the present case related to the claim of the applicants and their parents against the insurance company for compensation of material and non-material damage due to the death of their brother in a traffic accident, who was insured in this company. Initially, the Basic Court approved their claim and that of their parents in terms of compensation for material and non-material damage, where for the non-material damage, the applicants were compensated separately in the amount of €8,000 (eight thousand euro), while each parent up to €10,000 (ten thousand euro). As a result of the appeal of the insurance company, the Court of Appeals confirmed the compensation for the material and non-material damage in relation to the parents of the applicants, while modifying the Judgment of the Basic Court, reducing the amount from €8,000 (eight thousand euro) to €5,000 (five thousand euro) for each of the applicants. As a result, the applicants jointly filed a revision against the Judgment of the Court of Appeals, which the Supreme Court, by the contested Judgment, rejected as impermissible on the grounds that the value of the object of the dispute in the contested part of the judgment does not exceed the amount of €3,000 (three thousand euro) for each of them, and that it considered them as simple co-litigants, where the procedural position of a co-litigant does not depend on the procedural position of the other co-litigants, therefore, the value of the dispute is taken separately for each one of them. The applicants before the Court challenged the aforementioned Decision of the Supreme Court, claiming a violation of their rights protected by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, articles 32 [Right to Legal Remedies], 54 [Judicial Protection of Rights] as well as paragraphs 3 and 5 of article 102 [General Principles of the Judicial System] of the Constitution. In essence, the applicants before the Court claimed that as a result of the decision of the Supreme Court, (i) the right to fair and impartial trial, guaranteed by Article 31 [Right to Fair and Impartial Trial] of Constitution and Article 6 (Right to a fair trial) of the European Convention on Human Rights have been violated, because the value of the object of their dispute exceeds the value of €3,000 (three thousand euro), established in the legal provisions of Law on Contested Procedure, on the grounds that their claims in the contested part of the judgment of the Court of Appeals by revision, which had the value of 3,000 € (three thousand euro) separately, are not separate disputes but constitute a single claim, among other things, because they rely on the same legal and factual basis and relate to one respondent, as well as contain the same requests for all claimants. Based on this and the assessment of whether the applicants’ right to access to the Supreme Court has been violated, the Court (i) elaborated the general principles of the right to access to the 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 developed by the European Court of Human Rights that relate to the ratione valoris restriction for access to higher instance courts, to (ii) continue with the application of these principles and criteria in the circumstances of the present case. The judgment of the Court specifically refers to the principles and criteria established in the case of the European Court of Human Rights in the case Zubac v. Croatia through which the latter had developed a specific test in terms of the criterion of proportionality of the restriction of access to the courts of the highest instances 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 the sense of the latter, in accordance with the test developed by the European Court of Human Rights assessed the issues related to (a) the foreseeability of the restriction on access to the court as a result of the threshold of the value of the object in the amount of €3,000 (three thousand euro) established by paragraph 2 of article 211 of the Law on Contested Procedure; (b) whether the Applicants or the Supreme Court should bear the consequences of the errors made during the procedure in the lower instance courts; and (c) whether in applying this restriction the Supreme Court has exercised “excessive formalism”, to conclude with its conclusion regarding the proportionality of the restriction of access to the Supreme Court. The Judgment first emphasizes that the competence of the Supreme Court, established by law, to examine the permissibility of the revision in terms of the ratione valoris threshold, based on paragraph 2 of Article 211 (no title) of the Law on Contested Procedure is not disputed. Further, in the application of the aforementioned criteria in the circumstances of the present case, the Judgment also emphasizes that taking as a basis the very essence of the jurisdiction and competence of the Supreme Court to adjudicate on issues of legality of decisions issued by lower instance courts as the highest judicial authority, the ratione valoris threshold is (i) prescribed by law; and (ii) pursues a legitimate aim, which serves compliance with 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, the Court considered that the finding of the Supreme Court in the circumstances of the present case, based on the case law of the European Court of Human Rights, qualifies as “excessive formalism” in the interpretation and application of the law in the context of access to justice. More specifically, the Judgment clarified that the primary duty of the Supreme Court is to elaborate and apply the relevant provisions of the Law on Contested Procedure that are related to co-litigation and the determination of the value of the object of dispute, in their entirety and not isolated, respectively, that the latter should not have completely disregarded Article 32 of the Law on Contested Procedure in the application of Article 211 of the LCP in conjunction with Article 268 of the LCP, which specifies the determination of value of the object when the respective claims are based on the same factual and legal basis, since their application and/or justification for their non-application was decisive for the parties that submitted the revision. Consequently, the Court concluded 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 to access to higher courts. The Court also emphasized 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 European Convention on Human Rights, applies only to the specific circumstances of the present case, the assessment of which must be done on a case-by-case basis, and is only related to the right of access to the court, namely the Supreme Court, so that it does not in any way prejudge the outcome of the merits of the case.
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7. KI04/23
Applicant: Avdyl Bajgora
Published on: 30 July 2024
Request for constitutional review of the Decision [Rev. no. 43/2022] of the Supreme Court of Kosovo, of 10 October 2022
The Court assessed the constitutionality of Decision [Rev. no. 43/2022] of the Supreme Court of Kosovo, of 10 October 2022. The judgment initially clarifies that the applicant submitted his first referral to the Court, registered with the number KI143/21, whereby he contested the Decision [Rev. no. 558/2020] of the Supreme Court of 22 February 2021, which was related to his claim for compensation of three (3) jubilee salaries from the Kosovo Energy Corporation, after the latter rejected his request for recognition of the right to the aforementioned compensation. The Basic Court approved the claim of the applicant as grounded, the Court of Appeals, acting on the appeal of the Kosovo Energy Corporation, modified the Judgment of the Basic Court, rejecting the claim of the applicant in its entirety, while the Supreme Court found that the revision in this case is not permitted, because the value of the dispute did not exceed the amount of 3,000.00 euro, as established in paragraph 2 of Article 211 (no title) of the Law on Contested Procedure. In case KI143/21, the Court, by its Judgment of 25 November 2021, found that the Judgment [Rev. no. 558/2020] of the Supreme Court, of 22 February 2021, was rendered in violation of the applicant’s right to access to the court, as an integral part of the right to a fair and impartial trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights. Judgment further clarifies that, as a result of Judgment KI143/21 of the Constitutional Court, the Supreme Court, on 10 October 2022 rendered Decision [Rev. no. 43/2022] whereby it again rejected the revision of the applicant as impermissible. In essence, the Supreme Court again found that the value of the dispute did not exceed the amount of 3,000 euro as established in paragraph 2 of Article 211 of the Law on Contested Procedure. The applicant contested again before the Court the Decision of the Supreme Court, claiming, among other things, that as a result of the decision of the Supreme Court, (i) the right to fair and impartial trial, guaranteed by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights has been violated, as a result of the rejection to consider his request for revision, including contrary to the findings of the Constitutional Court by the Judgment in case KI143/21. The Court, taking as a basis the reasoning and finding of the Supreme Court, by its second Decision, which is again related to the permissibility of the revision, assessed that the applicant’s allegations fall within the scope of his right to access the court, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights. This is because the essential allegations raised in his request were related to whether the Supreme Court, by dismissing his revision again as impermissible due to the value of the dispute, has disproportionately affected his right to render a decision on merits regarding his statement of claim. Based on the above and the assessment of whether the applicant’s right to access to the Supreme Court has been violated, the Court (i) elaborated the general principles of the right to access to the 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 developed by the European Court of Human Rights that relate to the ratione valoris restriction for access to higher instance courts, to (ii) proceeded with the application of these principles and criteria in the circumstances of the present case. The Court’s Judgment specifically refers to the principles and criteria established in the case of the European Court of Human Rights in case Zubac v. Croatia, through which the latter developed a specific test in terms of the criterion of proportionality of the restriction of access to the courts of the highest instance as a result of the threshold ratione valoris. 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 the sense of the latter, in accordance with the test developed by the European Court of Human Rights assessed the issues related to (a) the foreseeability of the restriction on access to the court as a result of the threshold of the value of the object in the amount of 3,000 euro stipulated by paragraph 2 of article 211 of the Law on Contested Procedure; (b) whether the Applicant or the Supreme Court should bear the consequences of the errors made during the proceedings before the lower instance courts; and (c) whether in applying this restriction the Supreme Court has used “excessive formalism”, to conclude with its conclusion regarding the proportionality of the restriction of access to the Supreme Court. However, taking into account that in the circumstances of the present case, as it also emphasized in its first Judgment, namely the Judgment in case KI143/21, the rejected value of the claim according to the provisions of the enacting clause of the Court of Appeals itself, exceeded the total value of 3,000 euro, according to the clarifications provided in the published Judgment, the Court, applying the principles stemming from the case law of the European Court of Human Rights, reiterated that the very formalistic interpretation of the Supreme Court related to the threshold rules of the value of the object of dispute in the circumstances of the applicant’s case, and which are directly related to the contested Judgment of the Court of Appeals, do not coincide with the criterion of guaranteeing the practical and effective right of access to the court within the meaning of paragraph 1 of article 31 of the Constitution, in conjunction with paragraph 1 of article 6 of the European Convention on Human Rights. As a result of this assessment, the Court considered that the contested Decision of the Supreme Court, which for the second time rejected the applicant’s revision as impermissible, unjustifiably and/or disproportionately violated the applicant’s access to its jurisdiction, creating an obstacle for his case to be resolved on merits.
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8. KI199/22
Applicant: P.T.P. “Arta XH”
Published on: 30 July 2024
Request for constitutional review of the Decision [E. Rev. no. 25/20] of 1 August 2022, of the Supreme Court of the Republic of Kosovo, of 1 August 2022
The Court assessed the constitutionality of Decision [E. Rev. no. 25/20] of 1 August 2022, of the Supreme Court of the Republic of Kosovo, of 1 August 2022. The Judgment first clarifies that the circumstances of the present case are related to a dispute for compensation for damage and the relevant company with which there was a contractual relationship. According to the clarifications given in the Judgment, (i) the applicant and the relevant company had concluded a contract in 2002, related to the sale of scrap metal; (ii) in December 2010, the company underwent the privatization process and was registered as a new legal entity, and continued to fulfill its contractual obligations until 19 August 2011, when it unilaterally terminated the contract with the applicant; (iii) the applicant initiated the legal proceedings, requesting the corresponding compensation for the damage, also specifying that the value of the object of the dispute must be determined through evidence and financial expertise provided by a financial expert. The Basic Court and the Court of Appeals rejected the applicant’s lawsuit in its entirety, including the specific request to determine the value of the object of the dispute according to the provisions of Article 36 (no title) of the LCP, while the request for revision submitted to the Supreme Court, was rejected on procedural grounds, namely the reasoning that the value of the object of the dispute did not exceed the threshold of 10,000 euro according to the provisions of Article 508 (no title) of the LCP. The applicant before the Court challenges the aforementioned Decision of the Supreme Court, claiming 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 decision of the Supreme Court violated his right to “access to court” guaranteed by the aforementioned articles of the Constitution and the European Convention on Human Rights, among other things because (i) despite the continuous request, the value of the dispute was not determined in the court proceedings; (ii) the courts failed to determine the value of the object of the dispute ex officio despite the specific obligation stemming from the Law on Contested Procedure; while (iii) the Supreme Court rejected the request for revision precisely on the basis of the value of the dispute, despite the failure of the lower courts to determine this value. In assessing the claims of the applicant and whether his right of access to the Supreme Court has been violated, the Court (i) elaborated the general principles of the right to access to the court, developed through the case law of the European Court of Human Rights and affirmed through the case law of the Constitutional Court, including here the principles and criteria developed by the European Court of Human Rights that are related to the ratione valoris restriction for access to higher courts, to (ii) continue with the application of these principles and criteria in the circumstances of the present case. The Judgment of the Court specifically refers to the principles and criteria established in the case of the European Court of Human Rights in case Zubac v. Croatia through which the latter had developed a specific test in terms of the criterion of proportionality of the restriction of access to the courts of the highest instance 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 the sense of the latter, in accordance with the test developed by the European Court of Human Rights assessed the issues related to (a) the foreseeability of the restriction on access to the court as a result of the threshold of the value of the object in the amount of €10,000 (ten thousand euro) established in Article 508 of the Law on Contested Procedure; (b) whether the Applicant or the Supreme Court should bear the consequences of the errors made during the proceedings in the lower instance courts; and (c) whether in applying this restriction the Supreme Court has exercised “excessive formalism”, to conclude with its conclusion regarding the proportionality of the restriction of access to the Supreme Court. The Judgment first emphasizes that the competence of the Supreme Court, established by law, to examine the permissibility of the revision in terms of the ratione valoris threshold prior to the assessment of the revision on merits, based on Article 508 (no title) of the Law on Contested Procedure, is not disputed. Furthermore, in the application of the aforementioned criteria in the circumstances of the present case, the Judgment also emphasizes that it is based on the very essence of the jurisdiction and competence of the Supreme Court to adjudicate on issues of legality of decisions rendered by lower instance courts as the highest judicial authority, the ratione valoris threshold is (i) prescribed by law; and (ii) pursues a legitimate aim, which serves compliance with 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, the Court considered that the finding of the Supreme Court in the circumstances of the present case, based on the case law of the European Court of Human Rights, qualifies as “excessive formalism” in the interpretation and application of the law in the context of access to justice, among other things, because it is the obligation of the Supreme Court to interpret and apply the provisions of the Law on Contested Procedure in their entirety, and that the reference in Article 508 of the Law on Contested Procedure, and which determines that revision in commercial disputes is not allowed if the value of the object of the dispute in the contested part of the final judgment does not exceed €10,000 (ten thousand euro), cannot be applied in isolation from other applicable provisions, including Article 36 (no title) of the Law on Contested Procedure and which obliges the lower courts to act ex officio in determining the value of the object of the dispute in the circumstances specified in the aforementioned article. According to the clarifications provided, the failure of the lower courts, including despite the continuous requests of the applicant, to determine the value of the object of the dispute according to legal obligations, cannot result in the violation of the applicant’s rights to access to justice, namely the right to use the legal remedy of the request for revision according to the provisions of the Law on Contested Procedure. Consequently, the Court concluded 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 to access to higher courts. The Court also emphasized 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 European Convention on Human Rights, applies only to the specific circumstances of the present case, the assessment of which must be done on a case-by-case basis, and is only related to the right of access to the court, namely to the Supreme Court, so that in no way it does not prejudge the outcome of the merits of the case.
You can read the notification regarding the Judgment by clicking here
You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here
Resolutions on Inadmissibility
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II.
In seventeen (17) 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 “apparent absence of a violation”, and/or (ii) the latter are “unsubstantiated or unreasoned”.
9. KI147/23
Applicant: Miomir Matejeviq
Published on: 3 July 2024
Request for constitutional review of Judgment [Pml. no. 22/2023], of the Supreme Court of the Republic of Kosovo of 30 January 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
10. KI237/23 and KI269/23
Applicant: Ilir Mulhaxha
Published on: 3 July 2024
Request for constitutional review of Decision [no. 54/2023] of the Ministry of Justice, of 28 February 2023 and Decision [DPL. no. 01/2023] of the Disciplinary Commission for Private Enforcement Agents, of 23 February 2023, in case KI269/23, constitutional review of Decision [ARJ 112/2023] of the Supreme Court of Kosovo, of 17 August 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
11. KI286/23
Applicant: Feride Marevci
Published on: 3 July 2024
Request for constitutional review of Judgment [Rev. no. 380/2023], of the Supreme Court of the Republic of Kosovo of 2 October 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
12. KI151/23
Applicant: H.R. Zh.A.
Published on: 11 July 2024
Request for constitutional review of Judgment [Rev. no. 45/23], of the Supreme Court of the Republic of Kosovo of 20 February 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
13. KI288/23
Applicant: Gjelosh Vataj
Published on: 11 July 2024
Request for constitutional review of Decision [Rev. no. 349/2023], of the Supreme Court of the Republic of Kosovo of 13 September 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
14. KI192/22
Applicant: Elire Krasniqi
Published on: 12 July 2024
Request for constitutional review of Judgment [Rev. no. 51/21], of the Supreme Court of the Republic of Kosovo of 10 March 2022
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
15. KI236/23
Applicant: Robert Smakaj
Published on: 17 July 2024
Request for constitutional review of Judgment [Pml. no. 245/2023], of the Supreme Court of the Republic of Kosovo of 5 June 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
16. KI79/24
Applicant: Ali Xhigoli and Naser Xhigoli
Published on: 17 July 2024
Request for constitutional review of Judgment [Rev. no. 290/23], of the Supreme Court of the Republic of Kosovo of 22 November 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
17. KI63/24
Applicant: Vigan Isufi
Published on: 17 July 2024
Request for constitutional review of Judgment [Rev. no. 444/2023], of the Supreme Court of the Republic of Kosovo of 6 November 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
18. KI158/22
Applicant: Ahmet Meha
Published on: 17 July 2024
Request for constitutional review of Judgment [ARJ. UZVP. no. 15/2022], of the Supreme Court of the Republic of Kosovo of 24 February 2022
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
19. KI30/24
Applicant: Naser Foniqi
Published on: 18 July 2024
Request for constitutional review of Judgment [AA. no. 44/2023], of the Supreme Court of the Republic of Kosovo, of 19 October 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
20. KI219/23
Applicant: Ibrahim Bajrami
Published on: 18 July 2024
Request for constitutional review of Decision [AC-I-21-0453-A0001] of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters of 15 June 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
21. KI253/23
Applicant: Driton Musa
Published on: 18 July 2024
Request for constitutional review of Judgment [Ac. no. 6260/2021], of the Court of Appeals of the Republic of Kosovo, of 17 May 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
22. KI193/23
Applicant: Vllaznim Hamdija
Published on: 24 July 2024
Request for constitutional review of Judgment [PML. no. 135/2023], of the Supreme Court of the Republic of , of 10 May 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
23. KI152/23
Applicant: Burim Zherka
Published on: 25 July 2024
Request for constitutional review of length of proceedings in case [CN. no. 30/23] in the Basic Court in Gjakova
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
24. KI08/24
Applicant: Gëzim Demolli
Published on: 30 July 2024
Request for constitutional review of Judgment [Pml. no. 607/2023], of the Supreme Court of the Republic of Kosovo of 30 November 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
25. KI52/24
Applicant: Shkelzen Zariqi
Published on: 30 July 2024
Request for constitutional review of Judgment [Pml. no. 446/2023], of the Supreme Court of the Republic of Kosovo of 29 November 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
III.
In one (1) Resolution on Inadmissibility published by the Court, the latter found that the Applicants’ referral is inadmissible based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, paragraph 2 of Article 47 (Individual Requests) of the Law, item (b) paragraph (1) of Rule 34 (Admissibility Criteria) of the Rules of Procedure, because the latter is premature.
26. KI107/23
Applicant: Maria Thuraya Bamieh
Published on: 22 July 2024
Request for constitutional review of Decision [PPRKR. No. 269/19], of the Basic Court in Prishtina of 16 January 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
IV.
In three (3) 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 49 (Deadlines) of the Law, item (c) paragraph (1) of Rule 34 (Admissibility Criteria) of the Rules of Procedure, because the latter were submitted out of four (4) month time limit.
27. KI246/23
Applicant: Rexhep Bajraktari
Published on: 26 July 2024
Request for constitutional review of the Notification [KML. C. no. 89/23], of the Chief State Prosecutor’s Office of 7 August 2023 and the Decision [A.c. no. 8938/2022], of the Court of Appeals of the Republic of Kosovo of 24 March 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
28. KI293/23
Applicant: Musa Shabani
Published on: 30 July 2024
Request for constitutional review of Judgment [E. Rev. no. 17/2023], of the Supreme Court of the Republic of Kosovo of 5 October 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
29. KI254/23
Applicant: “Matkos Group” l.l.c.
Published on: 30 July 2024
Request for constitutional review of Decision [ARJ. no. 44/2023], of the Supreme Court of the Republic of Kosovo of 31 May 2023
You can read the full text of the Resolution and summary in two official languages of the Republic of Kosovo, by clicking here
Decisions
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V.
In two (2) Decisions to reject the Referral published by the Court, the latter found that the referrals are rejected based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 47 (Individual Requests) of the Law, item (b) paragraph (2) of Rule 54 (Dismissal and Rejection of Referrals) of the Rules of Procedure, because one referral is incomplete and the other is the repetition of a previous referral.
30. KI182/23
Applicant: Bajram Santuri
Published on: 3 July 2024
Request for constitutional review of unspecified act
You can read the full text of the Decision and summary in two official languages of the Republic of Kosovo, by clicking here
31. KI281/23
Applicant: Lendita Zherka
Published on: 11 July 2024
Request for constitutional review of unspecified act
You can read the full text of the Decision and summary in two official languages of the Republic of Kosovo, by clicking here
Note:
This notification was prepared by the Secretariat of the Court solely for informational purposes. The full texts of the decisions have been served on all parties involved in the cases and will be published in the Official Gazette of the Republic of Kosovo within the specified deadlines.