Notification on decision in Case KO 100/22 and KO 101/22

The Constitutional Court of the Republic of Kosovo today has decided on the joined Referrals in cases no. KO 100/22, with applicants Abelard Tahiri and 10 other deputies, and no. KO 101/22, with applicants Arben Gashi and 10 other deputies of the Assembly of the Republic of Kosovo, regarding the constitutional review of the Law no. 08/L-136 on Amending and Supplementing the Law no.06/L-056 on the Kosovo Prosecutorial Council.
The Court unanimously decided to (i) declare the referrals admissible and to hold that: (ii) point 1.3.2 of paragraph 1 of article 6 and article 8, namely article 10/A of the Contested Law, are not in compliance with paragraph 1 of article 4 [Form of Government and Separation of Power], paragraph 10 of article 65 [Competences of the Assembly] and article 132 [Role and Competencies of the Ombudsperson] of the Constitution; (iii) paragraph 2/a of article 13 of the Contested Law is not in compliance with paragraph 1 of article 4 [Form of Government and Separation of Power] and paragraph 1 of article 110 [Kosovo Prosecutorial Council] of the Constitution; (iv) paragraph 5 of article 16 of the Contested Law is not in compliance with paragraph 1 of article 24 [Equality before the Law] of the Constitution; (v) article 18, respectively article 23/A of the Contested Law is not in compliance with articles 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution; (vi) paragraph 3 of article 11 and article 20 of the Contested Law are not in compliance with paragraph 1 of article 4 [Form of Government and Separation of Power], article 32 [Right to Legal Remedies], article 54 [Judicial Protection of Rights] and paragraph 1 of article 110 [Kosovo Prosecutorial Council] of the Constitution; and (vii) to declare null and void, in its entirety, the Law no. 08/L-136 on Amending and Supplementing Law no.06/L-056 on the Kosovo Prosecutorial Council.
The essence of the applicants’ allegations, supported by the Prosecutorial Council, the Bar Association and, in essence, also by the Ombudsperson in relation to issues pertaining to its competences, and opposed by the Ministry of Justice, pertains to the alleged infringement of the constitutional independence of the Prosecutorial Council, and the separation and balance of powers, in violation of the guarantees contained in articles 4 and 110 of the Constitution, respectively, because according to the applicants, the Contested Law, among others: (i) changes the composition of the Prosecutorial Council, reducing the balance between prosecutorial and lay members, with the latter being elected by a simple majority vote of the deputies present and voting in the Assembly, thereby subjecting the election of the members of a constitutionally independent institution only to the will of the ruling majority represented in the Assembly; (ii) stipulates the competence of the Ombudsperson to elect one (1) of the lay members of the Prosecutorial Council, contrary to the Constitution and the constitutional functions of the Ombudsperson; (iii) by stipulating the decision-making majority of the Prosecutorial Council to a qualified majority and conditioning the same on the vote of its lay members elected by a simple majority in the Assembly, subjects the decision-making of a constitutionally independent institution to the political will of the ruling majority represented in the Assembly; (iv) does not treat prosecutorial and lay members equally in the context of the legal remedies available in case of their dismissal, making it possible only for the prosecutorial members of the Council to appeal directly to the Supreme Court; and (v) arbitrarily terminates the mandates of the members of the Prosecutorial Council, in violation of the constitutional guarantees, the case-law of the Court and the European Court of Human Rights (ECtHR).

In reviewing the constitutionality of the Contested Law, the Court has, among others, initially elaborated: (i) the basic constitutional principles regarding the justice system, as specified by the Constitution; (ii) a brief history of the Prosecutorial Council, through the respective laws since its establishment, as far as it is relevant to the circumstances of the case at hand; and (iii) the relevant case-law of the Court, the ECtHR and the Court of Justice of the European Union (CJEU). The Court has also elaborated on the basic principles deriving from the Reports and Opinions of the Venice Commission, including but not limited to: (i) the Compilation of Opinions and Reports on Prosecutors of 26 April 2022; (ii) the Report on European Standards concerning the Independence of the Judicial System: Part II – “Prosecution Service”; (iii) the Opinion pertaining to the qualified majorities and anti-deadlock mechanisms; (iv) the relevant Opinions of the Consultative Council of European Prosecutors, including Opinions no. 9 (2014) and no. 13 (2018), as well as the relevant Recommendations of the Committee of Ministers of the Council of Europe; and (v) the two Opinions of the Venice Commission on Kosovo, pertaining to the Contested Law, adopted on 13 December 2021 and 23 March 2022, respectively.

In applying the aforementioned principles to the review of the constitutionality of the Contested Law, the Judgment initially (i) emphasizes that, based on article 16 [Supremacy of the Constitution] of the Constitution, the power to govern stems from the Constitution, as the highest legal act of the Republic of Kosovo, in accordance with which laws and other legal acts must be; and (ii) reiterates its consolidated case-law, based on which, the Constitution consists of a system of constitutional principles and values on the basis of which the Republic of Kosovo functions, and that the norms provided by the Constitution cannot be interpreted in isolation from one another, but must be read and interpreted in conjunction with each other, because that is the only manner through which their exact meaning is derived in the context of article 7 [Values] of the Constitution, pertaining to the values of the Republic of Kosovo.
Further, the Judgment also clarifies that based on the relevant Opinions of the Venice Commission, but also those of the Consultative Council of European Prosecutors and the relevant recommendations of the Committee of Ministers of the Council of Europe, among others, it results that (i) unlike judicial systems, standards in the context of the organization of prosecutorial systems are less consolidated/uniform; however, (ii) there is a widespread tendency towards the independence of prosecutorial systems, and the case-law of the ECtHR and of the CJEU, also emphasize this aspect.

Having said that, the Judgment clarifies that in the constitutional order of the Republic of Kosovo, the prosecutorial system is fully independent. More precisely, the Prosecutorial Council is an integral part of Chapter VII of the Constitution regarding the Justice System and together with the Judicial Council, they have the competence to administer the judicial and prosecutorial systems, respectively, and despite the respective similarities and differences, in the exercise of their functions, the Constitution has equipped both with “full constitutional independence”. The Judgment clarifies that this full constitutional independence, based on article 4 of the Constitution pertaining to the separation and balance of powers, is also subject to the balancing and interaction with other branches of government, always in accordance with the values of the Republic as defined in article 7 of the Constitution.
Based on the reading of the constitutional provisions in their entirety and as far as it is relevant to the circumstances of the concrete case, in principle, and in the context of the Prosecutorial Council, the interaction of the Prosecutorial Council with the Assembly based on the determinations of articles 65 and 110 of the Constitution, is important. The interaction between these provisions, in essence, stipulates the exercise of the competence of the Assembly to determine the composition of the Prosecutorial Council and to elect the members of the Council, a function which must always be exercised in a manner that preserves the full independence of the Prosecutorial Council in the exercise of its constitutional functions, as stipulated in paragraph 1 of article 110 of the Constitution; and at the same time, must respect the separation and balance of powers as determined in paragraph 1 of article 4 of the Constitution.

In the Court’s Judgment, all the principles summarized above have been applied in the examination of each reviewed article of the Contested Law separately. Having said this and for the purposes of this summary, the Court will clarify the main findings and conclusions regarding the most contentious issues of the Contested Law, namely: (i) the revised composition of the Prosecutorial Council and the respective balance between prosecutorial and lay members; (ii) the election of lay members by the majority vote of the deputies present and voting in the Assembly; (iii) the competence of the Ombudsperson to appoint, namely elect one (1) lay member of the Prosecutorial Council; (iv) the difference in treatment between prosecutorial and lay members in terms of the right to a legal remedy and judicial protection of rights in case of the decision to dismiss them as members of the Prosecutorial Council; and (v) the termination of the current mandates of the members of the Prosecutorial Council upon the entry into force of the Contested Law.

(i) Balance between prosecutorial and lay members in the Prosecutorial Council

The Judgment clarifies that the Contested Law determines that the Prosecutorial Council consists of seven (7) members, including the Chief State Prosecutor who is represented ex officio in the Council, three (3) prosecutorial members selected by the prosecutorial system, and three (3) lay members, unlike the Contested Law, based on which, the Prosecutorial Council consists of thirteen (13) members, namely the Chief State Prosecutor who is represented ex officio, nine (9) prosecutorial members selected by the prosecutorial system and three (3) lay members elected by the Assembly, based on proposals of the Bar Association and Law Faculties, and through a public competition in relation to a member from the civil society, according to the specifics of the applicable law.
In reviewing the constitutionality of the provision of the Contested Law stipulating the aforementioned structure, the Judgment clarifies that the Constitution contains two defining articles, articles 65 and 110 of the Constitution, respectively. The Constitution, through paragraph 4 of its article 110, has provided, among others, that the composition of the Prosecutorial Council is determined by law, while through paragraph 10 of its article 65, has provided, among others, that the members of the Prosecutorial Council are elected by the Assembly in accordance with the Constitution. Unlike the Judicial Council, in the case of the Prosecutorial Council, the Constitution does not define the ratio between the members selected by the prosecutorial system itself and the respective lay members, delegating the regulation of this ratio at the level of the law, always to the extent that the full constitutional independence of the Prosecutorial Council, as stipulated in paragraph 1 of article 110 of the Constitution, is not undermined.

Taking into account the lack of a specific constitutional regulation in the context of the ratio between prosecutorial and lay members of the Prosecutorial Council, the Judgment also refers to the Opinions of the Venice Commission, including the two Opinions on Kosovo, and which, among others, emphasize that it is important for the composition of prosecutorial councils to avoid two risks, namely (i) in the context of prosecutorial members, the tendency of “corporatism” or of its perception, taking into account the “hierarchical organization of the prosecutorial system and the culture of subordination”; and at the same time, (ii) in the context of lay members, the possibility of “politicization” of the Council, namely the political influence through the manner of their election. This balance, in principle, and among others, according to the aforementioned Opinions, can be achieved through a pluralistic composition of the Council, in which the prosecutors selected by the system itself constitute a “substantive part”, yet not necessarily the majority of the members of the Council, and which avoids the possibility for the prosecutors to govern alone but at the same time, it does not enable the lay members to be able to block or “easily outvote them”.
Based on the clarifications summarized above and considering the fact that (i) according to paragraph 4 of article 110 of the Constitution, among others, the composition of the Prosecutorial Council is determined by law; and (ii) the standards of the Venice Commission, which reflect the importance of the prosecutorial councils that are balanced between prosecutorial members selected by the system itself and lay members, always with the necessary guarantees to avoid the risk of “corporatism” but also “politicization” of the Council, the Court held that the composition, namely the ratio between prosecutorial and lay members of the Prosecutorial Council according to the provisions of the Contested Law, is not incompatible with the Constitution.

(ii) The necessary majority in the Assembly for the election of the lay members of the Prosecutorial Council

Regarding the majority required for the election of the lay members of the Prosecutorial Council by the Assembly, the Judgment emphasizes two defining provisions, articles 65 and 80 of the Constitution. Article 65 of the Constitution in its paragraph 10 provides that, the members of the Prosecutorial Council are elected by the Assembly in accordance with the Constitution; whereas article 80 of the Constitution in its paragraph 1 provides that, laws, decisions and other acts are adopted by the Assembly by a majority vote of the deputies present and voting, except in cases where it is otherwise provided by the Constitution
The election of the lay members of the Prosecutorial Council by the Assembly, considering that the Constitution has not provided otherwise, falls within the scope of paragraph 1 of article 80 of the Constitution. As a result, due to the lack of any other specific regulation in the Constitution, the Judgment clarifies that the election of the lay members of the Prosecutorial Council by a majority of the deputies present and voting, is not incompatible with the Constitution.
Having said that and having in mind paragraph 1 of article 110 of the Constitution providing full constitutional independence to the Prosecutorial Council, and also in the context of the principle of separation and balance of powers as provided in articles 4 and 7 of the Constitution, respectively, the Judgment also emphasizes the fact that (i) the relevant Reports and Opinions of the Venice Commission, including the Opinions on Kosovo in relation to the Contested Law, emphasize that it is preferable that the selection of lay members of prosecutorial councils be done by qualified majority and not by a simple majority, emphasizing also the possibility of providing subsequent anti-deadlock mechanisms or even proportional voting systems, so that a parliamentary majority does not have the opportunity to elect at the same time and by a simple majority the lay members of the Council, thus resulting into the possibility of politicizing the Council and the infringement of its independence; and (ii) the laws of the Republic of Kosovo, including those on the Prosecutorial Council and Judicial Council, over the years, have also contained higher majorities for the election and dismissal of their members, including the majority of votes of all deputies of the Assembly.

(iii) The competences of the Ombudsperson to select the lay members of the Prosecutorial Council

In the context of the relevant provisions of the Contested Law through which the Ombudsperson is vested with the power to appoint/elect and dismiss one (1) lay member of the Prosecutorial Council, the Judgment initially emphasizes the fact that according to the Opinions of the Venice Commission, (i) in determining the appropriate balance between prosecutorial members selected by the prosecutorial system and lay members elected by the Assembly, a number of members may represent independent institutions and/or the civil society; and (ii) in the composition of prosecutorial councils, the same can also be represented ex officio or through the proposal/nomination of relevant candidates. Such a combination of mechanisms is reflected, among others, in the Basic Law on the Prosecutorial Council, which includes the mechanism of ex officio representation in the Council of the Chief State Prosecutor and the role of the Bar Association, Law Faculties and the civil society, through proposing/nominating lay members of the Council, subsequently elected by the Assembly.
Having said this, the Judgment, among others, clarifies that the starting point for evaluating the competence of the Ombudsperson to appoint/elect but also dismiss one of the lay members of the Prosecutorial Council, is the Constitution, namely (i) paragraph 10 of article 65 of the Constitution, according to which, among others, the Assembly elects members of the Prosecutorial Council; (ii) Assembly’s constitutional powers to elect the officials of constitutional independent institutions as defined in Chapters VII and XII of the Constitution, respectively; and (iii) article 132 of the Constitution, according to which, among others, the Ombudsperson has supervision competencies over all public authorities, including the Prosecutorial Council, in the context of illegal actions and inactions regarding fundamental rights and freedoms. In terms of the latter, the Judgment also recalls that while the Opinion of the Venice Commission clarified that the involvement of the Ombudsperson in the composition of the Prosecutorial Council is not necessarily contrary to the standards, it also drew attention to the fact that such involvement “does not compromise his or her [the Ombudsperson’s] ability to make independent determinations concerning matters involving the KPC”.

In the context of the aforementioned provisions in their entirety, the Judgment first clarifies that while in the case of the Prosecutorial Council, unlike the Judicial Council, the determination of the composition and the method of election/appointment of the relevant members is divided between the Constitution and the law, the competence of the Assembly to elect the relevant members of the Prosecutorial Council is determined by the Constitution and therefore, based on the principles deriving from the Court’s case-law, it cannot be transferred to the institution of the Ombudsperson through a law adopted according to paragraph 4 of article 110 of the Constitution. In connection to this and secondly, the Judgment clarifies that in the context of all independent constitutional institutions as defined by Chapter VII regarding the Justice System and Chapter XII regarding the Independent Institutions, and notwithstanding whether the Constitution (i) has specified the competence of the Assembly to elect/appoint at the level of the Constitution; or (ii) has maintained that the manner of election/appointment is regulated at the level of the law, the holders of public functions of the independent constitutional institutions, are all elected by the Assembly, with the exception of the Central Election Commission, whose composition is defined in the Constitution. This is the case with the specified members of the Judicial Council, the Ombudsperson, Ombudsperson deputies, the Auditor General, the Governor and members of the Central Bank Board and members of the Independent Media Commission, who are elected by the Assembly in the manner specified in the Constitution and/or relevant laws. Thirdly, based on article 132 of the Constitution, the Ombudsperson has supervisory competences defined in the Constitution, namely and among others, (i) the competence to monitor and protect the rights and freedoms of individuals from illegal and irregular actions or inactions of public authorities, including those of the Prosecutorial Council; and (ii) the obligation not to accept instructions and interference from any authority exercising power in the Republic of Kosovo with the same obliged to respond to his/her requests. Based on these constitutional characteristics, the Assembly of the Republic of Kosovo, through the relevant laws, has equipped the Ombudsperson with extensive authorizations, including monitoring functions, in the context of disciplinary procedures of judges and prosecutors administered by the respective Council. In fact and taking into account the nature of the constitutional functions of the Ombudsperson, the legislator has not even granted the same the competence to appoint/elect its own deputies, who are in fact elected by the Assembly through the majority of deputies present and voting. Consequently, the Judgment clarifies that the competence of the Ombudsperson to elect lay members of the Prosecutorial Council, is not in compliance with the Constitution.

(iv) Decision-making majority in the Prosecutorial Council

Regarding the method of decision-making in the Prosecutorial Council, the Judgment first clarifies that article 110 of the Constitution has two defining provisions, paragraph 4 of article 110 of the Constitution, according to which, among others, the rules of procedure of the Council are determined by a law adopted by the Assembly, and paragraph 1 of article 110 of the Constitution, according to which, the Council has full independence in exercising its constitutional powers. In the context of the latter, the Judgment also recalls that based on the referenced Opinions of the Venice Commission, but also its own case-law, the decision-making method of independent constitutional institutions is essential in the independent fulfillment of their functions.

The Judgment further clarifies that the relevant provision that determine the Council’s decision-making methods, specify that the decisions in the Council are taken by five (5) votes, namely a qualified majority of two-thirds (2/3) in a composition of seven (7) members, provided that in this majority, two (2) votes of lay members are included. After the remark of the Opinion of the Venice Commission regarding the possibility of decision-making blockages and the respective recommendation to foresee an anti-deadlock mechanism, the Contested Law was supplemented in the Assembly, foreseeing a second round of voting, again through the majority as two-thirds (2/3) of the members of the Council, including the vote of one (1) lay member of the Council who is elected by a simple majority in the Assembly.

In the context of the constitutional review of this provision of the Contested Law and whether the same infringes the full constitutional independence of the Council, the Judgment emphasizes that it is important to take into account (i) the nature of the issues that are subject to such a decision-making method; and (ii) the composition of the Prosecutorial Council, including the method of election of its lay members.

Pertaining to the first, the Judgment clarifies that the Council’s decision-making, which is subject to a qualified majority of two-thirds (2/3) in two rounds of voting, among others, concerns the most essential functions of the Prosecutorial Council, in the exercise of which it has full constitutional independence as defined by articles 109 and 110 of the Constitution, pertaining to (i) the proposal of the Chief State Prosecutor; and adoption of acts pertaining to (ii) the recruitment, proposal, promotion, transfer, and discipline of prosecutors. Whereas, regarding the second issue, the Judgment clarifies that (i) in the context of the Court’s finding that the competence of the Ombudsperson to appoint/elect one (1) member of the Council is not in compliance with the Constitution; and (ii) taking into account the determination of the Contested Law that the lay members of the Council are elected at the same time and by a simple majority in the Assembly, it results that decision-making in the Prosecutorial Council regarding its most essential constitutional functions, could be conditioned by the vote of one (1) lay member, elected by the Assembly by a simple majority. The Court emphasizes that such a solution is neither in accordance with the Opinions of the Venice, the constitutional independence guaranteed to the Council according to paragraph 1 of article 110 of the Constitution, nor with the principle of separation and balance of powers in a democratic state. As a result, the Judgment clarifies that the decision-making method by the Council, as determined by the Contested Law, is not in compliance with the Constitution.
Having said that, and referring to the Opinions of the Venice Commission, the Judgment also points out that in the context of the composition of the Council as specified through the Contested Law, both the simple majority and the qualified majority, have their shortcomings, because (i) in case of simple majority voting, it would be possible for the prosecutorial members to govern alone, and such a solution could contradict the essence of the principle that the Councils should have a pluralistic composition; while (ii) in the case of qualified majority voting and without a meaningful and effective anti-deadlock mechanism, it would be possible for the lay members elected at the same time and by a simple majority by the Assembly, to potentially block any decision-making. In this context, the Judgment emphasizes the principles of the Venice Commission, regarding the possibilities of prosecutorial council compositions, including the balance between prosecutorial and lay members and the method of electing the latter.

(v) Difference in treatment pertaining to the legal remedies and judicial protection of rights

Regarding the right to a legal remedy and judicial protection of rights for the members of the Prosecutorial Council in case of their dismissal, the Judgment first clarifies that articles 24, 32 and 54 of the Constitution must be interpreted in the context of paragraph 1 of article 110 of the Constitution, namely the full independence of the Council in exercising its functions. The Judgment emphasizes the fact that the independence of the Council is interrelated to the independence of its respective members, and the manner in which they are elected and dismissed, is crucial in this aspect. The Judgment notes that this issue was not subject of review of the two Opinions of the Venice Commission pertaining to the Contested Law.
The Judgment further clarifies that the Contested Law, unlike previous laws, establishes a difference in treatment between prosecutorial and lay members of the Prosecutorial Council, with respect to the legal remedy available in case of their dismissal. The Judgment also clarifies that according to the Contested Law, (i) the prosecutorial members of the Council are dismissed following a two-thirds (2/3) majority vote in the Council and then have the right to appeal directly to the Supreme Court, which in turn must decide within thirty (30) days; while (ii) their lay member colleagues, following the Council’s proposal, are dismissed by the Assembly with a simple majority of the deputies present and voting, different from the vote by majority of all deputies of the Assembly as stipulated by the Basic Law, and do not have the right of appeal directly to the Supreme Court. In applying the principles deriving from its case-law and that of the ECtHR in this context, the Court found that while a legal remedy, namely the administrative conflict procedure before the Basic Court theoretically exists for the lay members as well, the difference in treatment between prosecutorial and lay members regarding the respective legal remedies and judicial protection of rights, is not in conformity with the Constitution.

(vi) Termination of mandates of a constitutionally independent institution through law

Regarding the termination of the mandates of the members of the Council, namely the termination of the current mandates and with no right to a legal remedy (i) for six (6) out of nine (9) prosecutorial members by lot drawing; and (ii) the lay members through the effect of law, the Judgment initially clarifies that the Constitution, has two defining articles, its articles 4 and article 110, respectively. The former, in its paragraph 1, defines that Kosovo is a democratic Republic based on the principle of separation of powers and control and balance between them as defined by the Constitution, while the latter, (i) in its paragraph 1 defines that the Prosecutorial Council is a fully independent institution in the performance of its functions, in accordance with the law; while (ii) in its paragraph 4, it stipulates that the composition of the Prosecutorial Council, including the provisions concerning the mandates, is regulated by law.
In the context of the security of tenure of members of constitutionally independent institutions, the Judgment first clarifies (i) the relevant case-law of the Court; and then (ii) the case-law of the ECtHR and the CJEU. With respect to the former, it specifies that through its case-law, the Court has held the position that the premature termination of constitutional mandates and/or legal mandates of constitutionally independent institutions, is subject only to the conditions defined in the Constitution and/or laws on the basis of which the respective mandates were obtained.

Such a stance, in principle, was also held by the ECtHR and the CJEU, inter alia, in the cases Baka v. Hungary; Grzeda v. Poland, C-619/18, European Commission v. Poland and C-192/18, European Commission v. Poland, respectively. In the context of these judgments and always taking into account the respective differences and similarities, in principle, it results that (i) the premature termination of mandates in all of these cases followed as a result of the adoption of new laws in the name of reforms in the justice system, and finding violations of the European Convention and European Union law, respectively, the ECtHR and the CJEU, did not take into account the arguments of the respective governments that maintaining the existing mandates would represent an obstacle to the planned reforms; (ii) the security of constitutional and legal mandates is essential for the independence of independent institutions and their premature termination, can only be done based on the relevant provisions and procedures specified in the Constitutions and/or laws, on the basis of which they were obtained; (iii) the existence of effective legal remedies to challenge the relevant decisions based on which the mandates are terminated prematurely is important, and their absence resulted in a violation of the European Convention in the aforementioned cases of the ECtHR; and (iv) exceptionally, the acquired mandates may be terminated prematurely, however, any legal initiative/reform, which may result in the premature termination of the respective mandates, must pursue a legitimate aim and be proportional to the aim pursued and in this context, among others, the aforementioned jurisprudence, with an emphasis on the Grzeda case, also takes into account the approach of the lawmaker towards the security of tenure throughout the existence of the relevant institutions.

The relevant opinions of the Venice Commission, as clarified in the Judgment, in principle, also hold the same position. They emphasize the importance of preserving the mandates of members of constitutional institutions, regardless of whether they are defined by the Constitution and/or law. In principle, and according to the Venice Commission, the early termination of mandates must always be related to an identifiable violation or failure to perform the duty of the member concerned, as well as follow the constitutional/legal procedure for the dismissal or termination of the respective mandate, because otherwise and among others, the termination of the mandates of the constitutional institutions could be continuously dependent on the preferences of the executive and/or legislative branches of government.
Having said that, both opinions of the Venice Commission, with respect to the Contested Law, in this context and inter alia, emphasize that (i) the provisions of the Contested Law that enable the continuation of the mandates of a part of the membership of the Prosecutorial Council are “more respectable” of international standards in relation to the previous model of the Contested Law, which had proposed the termination of all mandates of the Prosecutorial Council; and (ii) members of the Prosecutorial Council, in principle, should be allowed to finish their mandates, but exceptionally, termination of the mandates may be acceptable, provided that it results in “significant improvement of the system” and that if “it is demonstrated convincingly that their replacement serves a vital public interest and leads to the overall improvement in the system.”.

In this context, the Judgment clarifies that the improvement of the balance between prosecutorial and lay members in the Prosecutorial Council, in principle, contributes to the advancement of the democratic legitimacy of the same, always if it is accompanied with the necessary safeguards to ensure its full independence. However, and with due regard to the aforementioned principles, and taking into consideration that (i) the case-law of the Court, has consistently maintained that the termination of the mandates of the members of a constitutionally independent institution must be interrelated to the grounds stipulated for the termination of the mandates foreseen according to the law on the basis of which they were obtained; (ii) despite continuous reforms pertaining to the Prosecutorial Council over the years, including changes to its composition, with the exception of the instance of termination of the ex officio representation of the Minister of Justice in the Council which was proposed by the relevant Ministry and was never contested, the mandates of the members of the Prosecutorial Council, have been continuously retained until their natural expiration through transitional provisions of all relevant laws, including the instance when the Prosecutorial Council was first established based on article 110 of the Constitution, after the declaration of independence of the Republic of Kosovo, and this, interpreted in harmony with the case-law of the ECtHR, is a clear indicator of the importance attributed to the security of tenure of constitutionally independent institutions in the legal order of the Republic of Kosovo; and furthermore, (iii) the fact that the Court has found that a number of essential provisions of the Contested Law are not in compliance with the Constitution, the Judgment ultimately stresses that the termination of the mandates of the Prosecutorial Council members, as per the Contested Law, cannot serve as a convincing reason for a “significant improvement of the system” that could serve a legitimate and proportionate aim, and on the basis of which, it would have been possible to exceptionally authorize the termination of the mandates of a constitutionally independent institution, thus creating a precedent with consequences for the security and independence of the exercise of the function of the constitutionally independent institutions and consequently, also for the democratic order and the rule of law in the Republic of Kosovo.

In the end, the Judgment clarifies that the referrals of the applicants were filed with the Court pursuant to paragraph 5 of article 113 of the Constitution and that this category of referrals has a suspensive nature, i.e. such a law can be sent to the President of the Republic of Kosovo for promulgation only after the decision-making of the Court and in accordance with the modalities defined in the Court’s final decision concerning the contested case. In the context of its case-law, as elaborated in the Judgment, the Court deems that, taking into account the nature of the provisions of the Contested Law declared as not in compliance with the Constitution, and the fact that it would be difficult to implement the remainder of the Contested Law following the invalidation of these provisions, the Contested Law, in the service of the principle of legal certainty, must be declared invalid, in its entirety.

This translation is unofficial and serves for informational purposes only.

Note:

This press release was prepared by the Secretariat of the Court for informational purposes only. The full text of the decision will be submitted to the parties involved in the case, will be published on the Court’s website and in the Official Gazette, once the relevant procedures established in the Law on the Constitutional Court and the Rules of Procedure of the Court have been completed. The summary published through this notice may be subject to language and technical corrections in the final draft of the decision.
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