Notification on decision in case KO15/24

The Constitutional Court of the Republic of Kosovo, has decided in case KO15/24 regarding the constitutional review of article 28 (Gender Quotas) of Law no. 08/L-228 on General Elections in the Republic of Kosovo, submitted by the Ombudsperson, pursuant to the provisions of subparagraph 1 of paragraph 2 of article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo.

The Court, (i) by eight (8) votes for and one (1) vote against, has decided to declare the referral admissible; and (ii) unanimously, to hold that article 28 (Gender Quotas) of Law no. 08/L-228 on General Elections in the Republic of Kosovo, is not in contradiction with article 45 [Freedom of Election and Participation] of the Constitution of the Republic of Kosovo.

The Judgment initially clarifies that the essence of the matter referred to the Court concerns article 28 (Gender Quotas) of the Law on General Elections, which stipulates that (i) in the list of candidates of each political entity at least thirty percent (30%) shall be male and at least thirty percent (30%) shall be female, with one candidate of each gender included at least once in each group of three (3) candidates, counting from the first candidate on the list; (ii) this provision does not apply to lists consisting of one or two candidates; and (iii) the Central Election Commission shall allocate additional public funds, in the amount of one percent (1%) of the total amount allocated to the political entity, for each mandate won by women over the thirty percent (30%) quota at the time of certification and that the Central Election Commission plans an additional budget for this purpose after each election.

According to the explanations given in the Judgment, the Ombudsperson contests the constitutionality of the aforementioned article of the Law on General Elections, alleging that it is contrary to the principles and values set forth in articles 7 [Values], 24 [Equality Before the Law] and 45 [Freedom of Election and Participation] of the Constitution, raising, among others, the following specific allegations: (i) the introduction by law of a quota of thirty percent (30%) for each gender constitutes an unjustified prejudice and justifies unequal treatment, considering that the gender percentage is almost fifty percent (50%) with fifty percent (50%) between “male and female”; (ii) in the electoral practice “it has not happened that political entities have submitted for certification lists of candidates with fifty percent (50%) of males and females”; and (iii) this provision is also contrary to the spirit of gender equality provided for in article 5 (General measures to prevent gender discrimination and ensure gender equality) of the Law no. 05/L 020 on Gender Equality. The Ombudsperson’s allegations are counter-argued by the Parliamentary Group of VETËVENDOSJE! Movement, which, among others, and referring to the Court’s previous case-law, emphasizes that article 28 (Gender Quotas) of the Law on General Elections is in accordance with the Constitution, in essence, because (i) the quota of thirty percent (30%) on the electoral lists is a legal quota, whereas the provisions of the Law on Gender Equality are legal and constitutional ideals; and (ii) the aforementioned article does not constitute indirect discrimination, taking into account that this minimum threshold is an affirmative measure aimed at maintaining gender balance in politics.

In the above context, the Judgment emphasizes that the essence of the matter raised before the Court concerns the compatibility with the Constitution of article 28 (Gender Quotas) of the Law on General Elections, namely the assessment of whether the stipulation of a legal quota of at least thirty percent (30%) of the representation of each gender in the list of political entities competing in the elections, violates the electoral rights provided by the Constitution. In this regard, the Judgment initially emphasizes the fact that gender equality is one of the most essential values of the constitutional order of the Republic of Kosovo and that the public authorities of the Republic, and in particular, the Assembly of the Republic of Kosovo, in the exercise of its legislative competence, has the positive obligation to undertake all necessary measures towards the accomplishment of gender equality in the Republic of Kosovo. As it pertains to the electoral rights and which constitute the essence of this Judgment, the latter recalls that article 45 [Freedom of Election and Participation] of the Constitution, among others, provides that every citizen of the Republic of Kosovo who has reached the age of eighteen (18), even if on election day, enjoys the right to elect and to be elected, unless this right is limited by a court decision. This constitutional right, must also be assessed in light of the constitutional values and principles, according to which, the Republic of Kosovo ensures gender equality as a fundamental value for the democratic development of the society, providing equal opportunities for both female and male participation in the political, economic, social, cultural and other areas of societal life. In addition, the Judgment underlines that based on the constitutional provisions, despite the fact that everyone is equal before the law, the principles of equal legal protection shall not prevent the imposition of measures necessary to protect and advance the rights of individuals and groups who are in unequal positions, and such measures shall be applied only until the purposes for which they were imposed have been fulfilled.

According to the explanations given in the Judgment, while the Constitution establishes that the principles of equal legal protection do not prevent the imposition of measures necessary for the protection and advancement of the rights of individuals and groups that are in unequal position, enabling, among others, the introduction of legal quotas for equal participation and representation of genders in political life until the necessary equality has been achieved, the Constitution does not stipulate the level, namely the percentage of this legal quota, delegating this matter to the competence of the Assembly of the Republic, always under the obligation to respect the positive obligations of the state and the standards stemming from applicable international instruments.

In the context of the latter, the Judgment, among others, elaborates (i) the general principles of the Constitution and the European Convention on Human Rights, as it pertains to the right to be elected and to participate; (ii) the instruments and documents adopted at the level of the United Nations and the Council of Europe relating to the affirmative measures for equal representation in politics; (iii) the recommendations of the Council of Europe and the opinions and reports of the Venice Commission on gender quotas on electoral lists as specific measures to address the de facto inequality between the genders in political representation; and (iv) the case-law of the Court, that of the European Court of Human Rights and that of the Constitutional Courts of other countries regarding electoral rights and gender quotas. Based on the documents and principles elaborated in the Judgment, the latter also points out the Resolution 1706(2010) of the Parliamentary Assembly of the Council of Europe, which recommends that in countries with a list system with proportional representation, consideration should be given to introducing a legal quota that provides not only for a high proportion of women candidates and ideally at least forty percent (40%), but also for a strict rule of ranking the positions. From the analysis elaborated in the Judgment, it results that the member states of the Council of Europe, including based on the Recommendation of the Parliamentary Assembly, are encouraged to increase the representation of women by introducing gender quotas, which, in principle, have two features, namely (i) the stipulation of a minimum quota of representation on the electoral lists of political entities; and (ii) a definition of a zipper ranking order of candidates from each gender or of a candidate of each gender including at least once in each group of three (3) candidates in the case of a quota of thirty percent (30%), with the aim of ensuring that candidates of the less represented gender do not risk being placed too low on the list and have a real opportunity to be elected. According to the explanations given in the Judgment, it results that the Member States of the Council of Europe and which have introduced such mechanisms in the relevant laws regulating the electoral lists of political entities competing in elections, in principle, have determined the quota level and/or percentage from twenty percent (20%) to forty percent (40%).

Further and in the context of assessing the constitutionality of the contested provision, the Judgment, initially and in relation to the percentage of the gender quota in the electoral lists of political entities, emphasizes the fact that while the Constitution provides for the possibility of imposition of necessary measures for the protection and advancement of the rights of individuals and groups that are in unequal position, only until the purpose for which they were imposed has been fulfilled, it does not stipulate the percentage of this quota, leaving the necessary space to the legislative branch, namely the Assembly of the Republic of Kosovo, to determine the percentage of this quota, in accordance with the positive obligations of the state to ensure gender equality and which, once determined, must be strictly enforced. The Judgment also clarifies that, based on the case-law of the European Court of Human Rights, the determination of this quota as a temporary and necessary measure until gender equality is achieved, is a matter of public policy and falls within the purview of the legislative branch. According to the explanations provided, it is not within the competence of the Constitutional Court to determine the percentage of this legal quota, but the Assembly of the Republic of Kosovo has the full competence to advance the percentage of the aforementioned quota as it pertains to the gender representation on the lists of political entities competing in the elections, always in the context of a necessary measure, until the purpose of achieving gender equality in the Republic of Kosovo has been fulfilled and in accordance with the standards established through the mechanisms of the Council of Europe as elaborated in this Judgment.

Secondly, and in relation to the intended goal of fifty percent (50%) representation as established in the Law on Gender Equality, the Judgment refers to its previous case-law through which this provision has been elaborated, including its Judgment in the case KI45/20 and KI46/20, with applicants Tinka Kurti and Drita Millaku and which, among others, emphasizes that the Assembly as a legislator has not formulated the percentage of fifty percent (50%) as a mandatory legal quota but has formulated it in the form of an aspiration towards achieving the purpose and determination of the Constitution for gender quality in the Republic of Kosovo. More precisely and according to the explanations provided, the fifty percent (50%) aimed through the Law on Gender Equality is not a legal quota for mandatory representation such as the thirty percent (30%) provided for in article 28 (Gender Quotas) of the Law on General Elections. Having said that, both are laws adopted by the Assembly of the Republic and it is up to the latter, to gradually achieve the determinations it has itself adopted through the law-making process.

Thirdly, and pertaining to the necessary standard of zipper ranking order of candidates by respective genders, the Judgment emphasizes that article 28 (Gender Quotas) of the Law on General Elections specifies that the list of candidates of each political entity must include one candidate of each gender included at least once in each group of three (3) candidates, which is counted from the first candidate on the list, and that such a determination, is also based on applicable international standards.

Finally, the Judgment emphasizes the fact that the Republic of Kosovo has the constitutional obligation to ensure gender equality as a fundamental value for the democratic development of the society and equal opportunities for the participation of women and men in political, economic, social, cultural and other areas of societal life. As the relevant documents of the Council of Europe establish and which have been elaborated in the Judgment, the lack of equal representation of women and men in political and public decision-making, is a threat to the legitimacy of the respective democracies.

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. To receive notifications on the decisions from the Constitutional Court please register at the Court’s website: https://gjk-ks.org/en/