Notification on decision in case KO283/23

The Constitutional Court of the Republic of Kosovo has decided regarding the Referral in Case KO283/23, concerning the constitutional review of the Decision [No. 08-V-668] of 15 December 2023 of the Assembly of the Republic of Kosovo, on the dismissal of Mr. Agron Beka from the position of member of the Kosovo Prosecutorial Council. The Referral for constitutional review of the aforementioned Decision of the Assembly was submitted to the Court by Abelard Tahiri and nine (9) other deputies of the Assembly of Kosovo, based on the authorizations provided in paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo.

The Court has decided, unanimously: (i) to declare the Referral admissible; and (ii) to hold that the Decision [No. 08-V-668] of 15 December 2023 of the Assembly is not in contradiction with paragraph 9 of Article 65 [Competencies of the Assembly] and paragraph 4 of Article 110 [Kosovo Prosecutorial Council] of the Constitution.

The Judgment initially explains that the circumstances of the present case are related to the dismissal of Mr. Beka from the position of non-prosecutor member of the Prosecutorial Council, through the challenged Decision of the Assembly. As explained in the Judgment, the dismissal of the member of the Kosovo Prosecutorial Council was preceded by Recommendation [No. 08/4446/Do-1994] of 28 September 2023 by the Committee on Legislation, Mandates, Immunities, Rules of Procedure of the Assembly, and Oversight of the Anti-Corruption Agency, whereby the latter had recommended to the Assembly the dismissal of Mr. Beka from the position of non-prosecutor member, based on the findings of this parliamentary committee. As reflected and explained extensively in the published Judgment, in the aforementioned Recommendation of the Committee on Legislation are listed the reasons on which the latter bases its recommendation to the Assembly for the dismissal of Mr. Beka from the position of non-prosecutor member of the Prosecutorial Council, assessing that the respective actions constitute violations of the law, specifically subparagraph 2.2 of paragraph 2 of Article 13 (Termination of Mandate) of Law No. 06/L-056 on Kosovo Prosecutorial Council, which specifically provides that a member of the Prosecutorial Council shall be dismissed if “2.2 he/she exercises the function contrary to the duties and responsibilities”.

The Applicants before the Court challenged the constitutionality of the Decision [No. 08-V-668] of 15 December 2023 of the Assembly, alleging, inter alia, that it was issued in contradiction with paragraph 1 of Article 4 [Form of Government and Separation of Power], paragraphs 1 and 2 of Article 31 [Right to Fair and Impartial Trial], Article 32 [Right to Legal Remedies], Article 54 [Judicial Protection of Rights], as well as paragraphs 1 and 4 of Article 110 [Kosovo Prosecutorial Council] of the Constitution. According to the Applicants, essentially, the Assembly has exceeded its constitutional authorizations because it does not have the authority to terminate the constitutional mandate of a member of the Prosecutorial Council. The Applicants’ allegations were supported by the Prosecutorial Council and the Parliamentary Group of Aleanca për Ardhmërinë e Kosovës while they were opposed by the Committee on Legislation and the Parliamentary Group of the Movement VETËVENDOSJE!.

In the context of the above-mentioned issues, the Judgment initially highlights that the aforementioned circumstances and allegations have raised, among others, the following questions: (i) whether the Assembly has the authorization to terminate the constitutional mandate of a non-prosecutor member of the Prosecutorial Council; and (ii) whether the termination of the mandate in the circumstances of the present case has resulted in violation of the independence of the Prosecutorial Council.

In the context of principles deriving from the analysis of constitutional provisions, the Judgment, among others, clarifies that in the context of exercising the functions of the Assembly concerning independent constitutional institutions within Chapter VII [Justice System] of the Constitution, the interaction of the Prosecutorial Council with the Assembly is of particular importance, according to the provisions of Articles 65 [Competencies of the Assembly] and 110 [Kosovo Prosecutorial Council] of the Constitution, which essentially define the exercise of the Assembly’s competence to determine the composition of the Prosecutorial Council and to elect the members of the Prosecutorial Council, always in order to preserve the full independence of this Council in exercising its constitutional functions, as defined in paragraph 1 of Article 110 [Kosovo Prosecutorial Council] of the Constitution and, at the same time, to respect the separation and balance of powers, as defined in paragraph 1 of Article 4 [Form of Government and Separation of Power] of the Constitution. The Judgment further recalls that the principles related to the independence of the Prosecutorial Council, the interaction of the latter with the Assembly in order to preserve the full independence of the Prosecutorial Council in exercising its constitutional functions, as well as the security of the mandates of the members of the Prosecutorial Council, have been established by the Court through its Judgment of 24 March 2023 in the cases KO100 and KO101/22 regarding the constitutional review of Law No. 08/L-136 on Amending and Supplementing the Law on the Prosecutorial Council.

In the context of the specific circumstances of this case, the Judgment clarifies that, despite the fact that the Constitution, through its paragraph 4 of Article 110 [Kosovo Prosecutorial Council], has defined that the composition of the Prosecutorial Council, as well as provisions, inter alia, related to dismissal, are defined by law, this competence of the Assembly must always be exercised in accordance with paragraph 1 of Article 110 [Kosovo Prosecutorial Council] of the Constitution, whereby full independence of the Council is guaranteed, a competence which cannot be diminished through legal provisions. However, as per explanations given, In the context of the dismissal of non-prosecutor members of the Prosecutorial Council, based on the content of paragraph 10 of Article 10 (Procedure of proposal, election and dismissal of members elected by the Assembly) of the Law on Prosecutorial Council, two different forms of proposal to the Assembly result for the dismissal of a non-prosecutor member of the Prosecutorial Council, namely: (i) through a proposal by the relevant Committee of the Assembly, which is tasked with reviewing and evaluating the performance or conduct of the non-prosecutor member and, in case of a proposal for dismissal, the latter is submitted to the Assembly for voting; and (ii) through a proposal by the Prosecutorial Council itself, when it considers that a non-prosecutor member does not fulfill his duty in accordance with the responsibilities or if he has acted inappropriately, a proposal which is submitted to the Assembly where it is subject to voting, as in the first case. In the present case, the proposal for dismissal of the respective non-prosecutor member of the Council comes from the relevant Committee of the Assembly, specifically from the Committee on Legislation as a result of the findings specified in the aforementioned recommendation. The Judgment clarifies that the possibility of dismissing a non-prosecutor member of the Prosecutorial Council by the Assembly, following the proposal of the relevant Committee, is expressly provided in the applicable Law on Prosecutorial Council.

The Judgment also clarifies that the Court through its case law has addressed cases, brought before it based on paragraph 5 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, wherein the decisions of the Assembly for the dismissal of members of independent institutions, established both by the Constitution and by law, were challenged. Through its case law, the Court has clarified the limitations of the authorizations of the Assembly for the dismissal of members of independent institutions, which it has also elected itself, noting that, in exercising this function, the Assembly is obliged to comply with and implement the specific provisions of the relevant laws it has adopted. These principles have been established, inter alia, through: (i) case KO127/21, concerning the dismissal of five (5) members of the Independent Oversight Board for the Civil Service of Kosovo collectively; (ii) case KO134/21, concerning the collective dismissal of all members of the Board of Radio Television of Kosovo; (iii) case KO157/23, concerning the dismissal of a member of the Board of the Procurement Review Body; and (iv) case KO139/21, concerning the dismissal of five (5) members of the Board of the Railway Regulatory Authority. According to the clarifications given in the aforementioned Judgments and in this Judgment, the Court found violations of constitutional provisions in the first three cases, based on the formulations of the provisions of the applicable laws, including the fact that the respective dismissals were collective, the respective decisions for their dismissal did not contain proper reasoning and, moreover, it was the decision-making of the dismissed members that had resulted in their dismissal. While in the fourth case, specifically the dismissals related to the members of the Board of the Railway Regulatory Authority, the Court did not find any constitutional violation, because the formulations of the provisions of the applicable law allowed the Assembly wider discretion in dismissing the respective members.

In the context of the circumstances of the present case, the Judgment clarifies that Mr. Beka was dismissed by the Assembly based on the recommendation of the Committee on Legislation, wherein the reasons for exercising his function “[…] in contradiction with his duties and responsibilities” were listed, based on a procedure for the dismissal of non-prosecutor members of the Prosecutorial Council that is expressly defined by Law on the Prosecutorial Council, and on a legal basis that is also expressly defined in the aforementioned law. In such circumstances where the Assembly has exercised its role related to non-prosecutor members of the Prosecutorial Council and has dismissed a non-prosecutor member based on the procedure and grounds for dismissal according to the provisions of the Law on the Prosecutorial Council, including based on reasoning that does not appear to be manifestly arbitrary, the Judgment holds that the Assembly, through the challenged Decision, has not exceeded its constitutional and legal authorizations in the context of paragraph 9 of Article 65 [Competencies of the Assembly] and paragraph 4 of Article 110 [Kosovo Prosecutorial Council] of the Constitution..

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/