Notification on the decisions from the review session held on 2 July 2021

The Constitutional Court of the Republic of Kosovo reviewed today the Referral KO 88/21, submitted by the President of the Republic of Kosovo.

Case summary:

In the deliberation session held on 2 July 2021, the Court reviewed case KO88/21, namely the Referral of the President of the Republic of Kosovo for (i) “the interpretation of the notion “largest parliamentary group” in the context of the allocation of eats in the CEC for the parliamentary groups represented in the Assembly of the Republic of Kosovo, in terms of Article 139, paragraph 4, of the Constitution of the Republic of Kosovo”; and (ii) “for resolving conflicts of authorizations of parliamentary groups to propose the CEC members”.

The Court notes that based on the facts of this case, it results that (i) on 22 April 2021, the President of the Republic had sent a request to the parliamentary groups for the nomination of candidates for CEC members; and (ii) between 29 April 2021 and 12 May 2021, the parliamentary groups represented in the Assembly, who are not eligible to participate in the allocation of guaranteed seats, namely LVV, PDK, LDK and AAK, had proposed the respective members, whilst political entities, which hold seats guaranteed for non-majority communities in Kosovo, also submitted their nominations.

The President of the Republic of Kosovo, on 12 May 2021, has appointed eight (8) members of the CEC. Two (2) other members were not appointed by the President of the Republic of Kosovo, because (i) LVV proposed three (3) candidates for members of the CEC, while PDK proposed two (2) candidates for members of the CEC, and claiming “lack of clarity” in the context of paragraph 4 of Article 139 of the Constitution which stipulates that “if fewer groups are represented in the Assembly, the largest group or groups may appoint additional members”, the President of the Republic of Kosovo addressed the Court with a request for interpretation of “the largest parliamentary group” in the context of the abovementioned provision, respectively whether the vacant positions in the CEC belong only to the largest parliamentary group or groups; and (ii) the Bosnian community, in the current structure of the Assembly, is represented through three (3) different political entities with an equal number of seats in the Assembly, while there were three (3) proposals submitted to the Presidency from this community, even though the latter is entitled to only one (1) seat in the CEC. Consequently, the President of the Republic also alleges “lack of clarity” in the context of paragraph 4 of Article 139 of the Constitution, with respect to the appointment of the CEC members from among the communities that are not in majority, in cases when a community is represented by more political entities, but with equal number of seats in the Assembly.

In the context of the circumstances mentioned above, and emphasizing that “the lack of clarity of competencies prevents the President to appoint all members of the CEC, as a body which administers and manages the free, equal and direct elections in Kosovo”, the President of the Republic of Kosovo addressed the Constitutional Court with (i) the request for interpretation of the notion of “largest parliamentary group” in the context of paragraph 4 of Article 139 of the Constitution, based on paragraph 9 of Article 84 of the Constitution; and (ii) the request to resolve the conflict of “authorizations” of parliamentary groups to propose the CEC members, based on item 1 of paragraph 3 of Article 113 of the Constitution.

(i) Regarding the assessment of admissibility in the context of paragraph 9 of Article 84 of the Constitution

In assessing the admissibility of the President’s Referral for interpretation of lack of constitutional clarities pursuant to paragraph 9 of Article 84 of the Constitution, and the relevant request for an answer to four (4) questions submitted to the Court and which will be fully reflected in the Resolution on Inadmissibility that will be published in accordance with the procedural rules in the following days, the Court found that the Referral of the President is inadmissible. The Court, through its case law, including case KO79/18, in which also a request by the President of the Republic for interpretation of paragraph 4 of Article 139 of the Constitution was considered, has clarified that (i) paragraph 9 of Article 84 of the Constitution is not independent of Article 113 of the Constitution; (ii) paragraph 9 of Article 84 and paragraph 1 of Article 112 of the Constitution can not be interpreted outside the context of Article 113 of the Constitution; and (iii) based on Article 113 of the Constitution, the Court’s possibility to take a consultative or advisory role through answering questions submitted to it is limited, as this role would be in conflict with its fundamental role to resolve cases brought before it.

(ii) Regarding the assessment of admissibility in the context of item (1) of paragraph 3 of Article 113 of the Constitution

In assessing the admissibility of the Referral of the President, based on item (1) of paragraph 3 of Article 113 of the Constitution, concerning the resolution of the conflict of “authorizations”, between the “constitutional competence” of the President and the “competence of the parliamentary groups represented in the Assembly” for the nomination of CEC members, the Court initially notes that the aforementioned Article of the Constitution stipulates that the President of the Republic of Kosovo is one of the three authorized parties to raise issues of “conflict among constitutional competencies of the Assembly of Kosovo, the President of the Republic of Kosovo and the Government of Kosovo”. This provision has been interpreted by the Court, initially through the Resolutions in cases KO131/18 and KO181/18, where it clarified the three cumulative constitutional criteria which must be met in order for the referrals raised under this Article to pass the admissibility test. In the above-mentioned cases, the Court had clarified that in terms of Article 113.3 (1) of the Constitution, the following three criteria must be met: (i) the conflict must be raised by one of the three authorized parties; (ii) the conflict arises over “constitutional competences” of the Assembly, the President and/or the Government of the Republic of Kosovo; and that (iii) there be a conflict.

The Court clarified that in the circumstances of this case the first constitutional criterion was met, because the Referral was submitted to the Court by the President of the Republic of Kosovo, as one of the three authorized parties. However, the Court found that the second constitutional criterion in the context of Article 113.3.(1) of the Constitution has not been met, because as the Court clarified in cases KO131/18 and KO181/18, the alleged conflict must stem from the constitutional competences defined by the Constitution for the authorized parties. In the circumstances of the present case, unlike Articles 84 (26), 139 (3) and 139 (4) of the Constitution, which determine the constitutional competence of the President for the appointment of the Chair of the CEC and the manner of the appointment of the members of the latter, the competence of the President for the appointment of the CEC members is not provided by the Constitution, but only by the Law on General Elections in the Republic of Kosovo, respectively item (a) of paragraph 3 of its Article 61.

Consequently, in the assessment of the Court, in the circumstances of the present case, the President of the Republic has not raised before the Court a conflict of “constitutional competencies” as established in Article 113.3 (1) of the Constitution, and therefore, the Court declared the Referral of the President of the Republic of Kosovo inadmissible pursuant to Article 113 of the Constitution and rejected the request for imposition of an interim measure based on Article 27 of the Law on the Constitutional Court.