Notification on the decisions from the review session held on 26 March 2021

In the review session held on 26 March 2021, the Constitutional Court of the Republic of Kosovo reviewed the Referrals: 1. KI 105/19; 2. KI 240/19; 3. KI 45/20 and KI 46/20; 4. KI 87/20; 5. KI 97/20; 6. KI 145/20; 7. KI 175/20 and 8. KI 13/21. Below you can read the brief summaries of decisions (full texts of decisions will be submitted to the parties, will be published on the Court’s website and in the Official Gazette during the following days):

1. Case: KI 105/19
Applicant: Privatization Agency of Kosovo

The subject matter of the Referral was the constitutional review of the Decision [AC-II.-12-0126] of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on the Privatization Agency of Kosovo Related Matters, of 14 February 2019, in conjunction with the Judgment [C. no. 2021/2007] of the Municipal Court in Prishtina, of 29 July 2007. The Applicant alleged that the challenged decision violated its fundamental rights and freedoms guaranteed by Articles 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, as well as paragraph 3 of Article 102 [General Principles of the Judicial System] of the Constitution.
The Referral was based on paragraph 4 of Article 21 [General Principles] and paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with Article 21.4 and paragraphs 1 and 7 of Article 113 of the Constitution, Article 20 of the Law on the Constitutional Court and Rules 39 (2) and 59 (2) of the Rules of Procedure, the Referral be declared inadmissible.

2. Case: KI 240/19
Applicant: Enver Latifi

The subject matter of the Referral was the constitutional review of the Decision [AC. no. 436/18], of the Court of Appeals of Kosovo, of 12 December 2018, whereby the Applicant alleged that his fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] and 34 [Right not to be Tried Twice for the Same Criminal Act] of the Constitution of the Republic of Kosovo, have been violated.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with Article 113.7 of the Constitution, Article 49 of the Law on the Constitutional Court and Rule 39 (1)(c) of the Rules of Procedure, the Referral be declared inadmissible.

3. Case: KI 45/20 and KI 46/20
Applicant: Tinka Kurti and Drita Millaku

The subject matter of the Referral was the constitutional review of the Decisions [AA.no. 4/2020] of the Supreme Court of Kosovo, of 19 February 2020 and [AA.no.3/2020], of 19 February 2020. The Applicants alleged that the challenged decisions violated their fundamental rights and freedoms guaranteed by Articles: 7 [Values], 24 [Equality Before the Law], 45 [Freedom of Election and Participation], 53 [Interpretation of Human Rights Provisions] and 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution of the Republic of Kosovo, in conjunction with Article 14 (Prohibition of discrimination) and Article 3 (Right to free elections) of the Protocol no. 1 of the European Convention on Human Rights.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.

Conclusions

The joined cases KI45/20 and KI46/20 are two cases related to the disputes concerning the elections of 6 October 2019. The Referrals were submitted by two candidates (Tinka Kurti and Drita Millaku) for deputies from the Political Entity of VETËVENDOSJE Movement! (LVV) – who alleged that the CEC, the ECAP and the Supreme Court have applied the manner of replacing the deputies provided by Article 112.2 (a) of the Law on the General Election, in an unconstitutional manner.
The Court recalls that several deputies of the Political Entity LVV, who were elected for government/municipal positions, vacated some positions of deputies which had to be replaced by legitimate candidates in the queue for deputies. Hence, from the deputies who vacated their seats the following replacements were made: the candidate Enver Haliti with 7,777 votes replaced the deputy Albin Kurti; the candidate Alban Hyseni with 7,767 votes replaced the deputy Glauk Konjufca; the candidate Arta Bajralia with 7,674 votes replaced the deputy Albulena Haxhiu; the candidate Fitim Haziri with 7,542 votes replaced the deputy Arben Vitia; the candidate Eman Rrahmani with 7,044 votes replaced the deputy Haki Abazi. Later on, the candidate Taulant Kryeziu with 6968 votes replaced the deputy Shpejtim Bulliqi.
The necessity to replace deputies automatically activated the legal provisions defined by Article 112.2 (a) of the Law on General Elections – an article that specifies the manner of replacement of the deputies, with the following text:
“112.2 A member of the Kosovo Assembly the term of which ceases pursuant to article 112.1 shall be replaced as follows:
a) by the next eligible candidate of the same gender who won the greatest number of votes of the reordered candidate list of the Political Entity on whose behalf the member contested the last election; […]”
The Court notes that, according to the interpretation of this article made by the CEC, the ECAP and the Supreme Court, all replacements were made based on the criterion of “gender” and without considering the result achieved by the candidates for deputy after achieving the legally required quota of 30% of underrepresented gender or minority gender. This manner of replacement provided by law, according to the Supreme Court, could not be avoided by either the CEC, the ECAP or the Supreme Court because there is an assumption that the laws are compatible with the Constitution and that they should be applied as they are, “until the Constitutional Court finds that a law or any of its legal provisions is contrary to the Constitution”.
Having disagreed with this interpretation, the Applicants submitted their Referrals to the Constitutional Court, under the key allegation that the CEC, the ECAP and the Supreme Court have applied the manner of replacing the deputies provided by Article 112.2 (a) of the Law on the General Election, in an unconstitutional manner. Basically, they alleged that despite achieving and exceeding of the 30% quota by women candidates for deputies from LVV – replacements for deputies were not made based on the election result but based on gender. According to them, this has caused inequality in treatment and violation of their right to be elected.
The Court recalls that, on the basis of replacement manner applied by the CEC, the ECAP and the Supreme Court, male deputies were replaced by male candidates for deputies and female deputies were replaced by female candidates for deputies – regardless of the fact that the Applicants received more votes than some of the male candidates who managed to get elected deputies of the Assembly. The first Applicant, Tinka Kurti had collected 7655 votes and the second Applicant, Drita Millaku had collected 7063.
The Court clarified that it is not reviewing in abstracto if Article 112.2 (a) of the Law on General Elections is or is not compatible with the Constitution. This is due to the fact that, neither before this Court nor before the previous public institutions that have addressed this issue, the Applicants have never alleged that article in question is unconstitutional. On the contrary, the Applicants only have alleged that this article was applied in unconstitutional manner by the CEC, the ECAP and the Supreme Court.
Taking into account the above facts and the allegations raised in this case, the Court in this individual constitutional complaint treated the fact: Whether the Article 112.2 (a) of the Law on General Elections has been implemented by the CEC, the ECAP and the Supreme Court, in accordance with the guarantees, values and principles proclaimed by Articles 24 and 45 of the Constitution, in conjunction with Article 14 of the ECHR and Article 3 of Protocol no. 1 of the ECHR?
The Constitutional Court found that the interpretation of this Article by the CEC, the ECAP and the Supreme Court, is not an accurate and constitutional interpretation for some of the following reasons – which are extensively elaborated in the Judgment.
First, the Court found that the CEC, the ECAP and the Supreme Court have interpreted Article 112.2 (a) of the Law on General Elections in a rigid and textual manner and separated from all other legal norms set forth by the Law on General Elections and Law on Gender Equality as well as the principles, values, and the spirit of the letter of the Constitution. This sort of interpretation has abstracted the context, purpose and reason to determine the quota of 30%, as specific measure to help achieve equal representation among the two genders in the Assembly of the Republic.
Secondly, the Court noted that the ratio legis of the Law on General Elections, in the context of gender representation in the Assembly, consists in providing – in any case – representation of at least 30% of the underrepresented or minority gender (whatever it may be). Nevertheless, obviously, 30% represents solely the minimum limit of gender representation of the minority gender, but not also the highest limit of representation of one gender. Consequently, the Court considers that, once a minimum representation of 30% is acquired for the underrepresented gender, all future replacements must be made on the basis of the ranking of candidates for deputies, which is determined by the election result. On this basis, the gender quota is applied only until the goal for which it has been set is achieved, namely to ensure the mandatory minimum representation of the minority gender in the quota of 30%, although the constitutional ideal and spirit of the Constitution, reflected in Article 7 aim to achieve factual equality of 50% to 50% between the two genders.
Thirdly, the Court pointed out that the interpretation of Article 112.2 (a) of the Law on General Elections pursuant to the way of interpretation by the CEC, the ECAP and the Supreme Court would make sense only in the situation when non-replacements gender-for-gender (woman-for-woman or man-for-man) could risk non-fulfillment of the legal quota of 30% of representation of the underrepresented gender. However, the interpretation of this article, in the way it was done, knowing that in the elections of 6 October 2019, female candidates of the political entity LVV had managed to get meritorious votes beyond the legal quota of 30%, is erroneous interpretation of this norm and inconsistent with the very purpose of the legal quotas stipulated in Article 27 of the Law on General Elections.
Fourthly, the Court highlighted that the purpose of setting quotas relates to the need to advance gender equality within society until the factual equality is reached and quotas become unnecessary. Article 112.2 (a) of the Law on General Elections exists for a single reason: to introduce the manner of replacement of deputies – by always preserving the purpose of mandatory legal representation of at least 30% of the minority gender. If, after meeting the norm of 30%, minority candidates (underrepresented) manage to become deputies on their own, by achieving better results than members of the majority gender, they should not be denied the right to be elected deputies of the Assembly.
The Court found that the Applicant Tinka Kurti was discriminated against based on gender in relation to her right to be elected, at the moment when despite reaching the minimum quota of 30% within the political entity LVV through the election result, at the moment when the opportunity for the replacement of deputies emerged, although she had more votes than the male candidates for deputies, Fitim Haziri and Eman Rrahmani, she was enabled to become a deputy.
Furthermore, the Court also found that the Applicant Drita Millaku was discriminated against based on gender in relation to her right to be elected, at the moment when despite the minimum quota of 30% being reached within the political entity LVV through the election result, at the moment when the opportunity for replacing the next deputies was created, namely when the deputy Shpejtim Bulliqi resigned, in his stead, based on the determination for replacement within the same gender, on 18 December 2020, the mandate of the deputy was taken by the candidate Taulant Kryeziu with 6968 votes.
Consequently, the Court found that: Decision [AA. no. 4/2020] of the Supreme Court, of 19 February 2020; Decision [AA. no. 3/2020] of the Supreme Court, of 19 February 2020; Decision [Anr. 35/2020] of the ECAP, of 13 February 2020; Decision [Anr. 36/2020] of the ECAP, of 13 February 2020; as well as point 5 of the Decision [no. 102/A-2020] of the CEC, of 7 February 2020, are contrary to Articles 24 [Equality before the Law] and 45 [Freedom of Election and Participation] of the Constitution, in conjunction with Article 14 (Prohibition of Discrimination) and Article 3 (Right to free elections) of the Protocol no. 1 of the ECHR.

The effect of the Judgment

The Court noted that, for objective reasons and in the interest of legal certainty, this Judgment could not produce retroactive legal effect in respect to the mandate of the deputies. In this regard, the Court clarified that this Judgment does not have retroactive effect and based on the principle of legal certainty it does not affect the rights acquired by third parties based on the decisions annulled by this Judgment. However, this does not mean that this Judgment is merely declaratory and without any effect.
The first effect of this Judgment is the repealing of the challenged decisions of the Supreme Court, the ECAP and the CEC, as being incompatible with the Constitution and the ECHR, in terms of the interpretation of Article 112.2 (a) of the Law on General Elections. Through the repealing of these decisions, this Judgment clarifies for the future that, based on an accurate and contextual reading of Article 112.2 (a) of the Law on General Elections, the replacement of candidates for deputies should be done in such a way that: firstly, to ensure a minimum representation of 30% of the underrepresented gender (minority gender), which cannot be put into question at any time; and secondly, in cases when the gender quota of 30% has been met based on the election result (as in the respective case), then the replacement of candidates for deputies should be done based on the election result, without being limited in terms of replacement based on the same gender, as far as the minimum representation of the underrepresented gender is not endangered.
The second effect that this Judgment produces relates the right that emerges for the Applicants or other parties that may be affected by this Judgment, from the moment of its entry into force. There emerged the right of these parties have to use other legal remedies available for further realization of their rights in accordance with the findings of this Judgment and the case law of the ECtHR cited in the present Judgment.

FOR THESE REASONS

The Court, in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, Articles 20 and 47 of the Law on the Constitutional Court and Rule 59 (1) of the Rules of Procedure, on 26 March 2021, unanimously:

DECIDES

I. TO DECLARE the Referrals KI45/20 and KI46/20 admissible;

II. TO HOLD that there has been a violation of Article 24 [Equality Before the Law] and Article 45 [Freedom of Election and Participation] of the Constitution of the Republic of Kosovo, in conjunction with Article 14 (Prohibition of discrimination) and Article 3 (Right to free elections) of the Protocol no. 1 of the European Convention on Human Rights;

III. TO DECLARE null and void:

(i) Decisions [AA. no. 3/2020 and AA. no. 4/2020] of the Supreme Court of the Republic of Kosovo, of 19 February 2020;
(ii) Decisions [Anr. 35/2020 and Anr. 36/2020] of the Election Complaints and Appeals Panel, of 13 February 2020;
(iii) Point 5 of the Decision [no. 102/A-2020] of the Central Election Commission, of 7 February 2020.

IV. TO HOLD that this Judgment has no retroactive effect and that based on the principle of legal certainty does not affect the rights of third parties acquired on the basis of decisions annulled;

V. TO ORDER all public authorities of the Republic of Kosovo to interpret Article 112.2 (a) of the Law on General Elections in accordance with the findings of this Judgment;

VI. TO NOTIFY this Judgment to the parties, and, to publish it in the Official Gazette in accordance with Article 20 (4) of the Law;

VII. TO DECLARE this Judgment is effective on the day of publish and its service on the parties.

4. Case: KI 87/20
Applicant: “SUVA” Rechtsabteilung

The subject matter of the Referral was the constitutional review of the Decision [E. Rev. no. 68/2019] of the Supreme Court of Kosovo, of 27 January 2020, whereby the Applicant alleged that its fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights (ECHR), and Article 46 [Protection of Property] of the Constitution in conjunction with Article 1 (Protection of property) of the Protocol no. 1 of the ECHR, have been violated.
The Referral was based on paragraph 4 of Article 21 [General Principles] and paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with Article 21.4 and Article 113.7 of the Constitution, Articles 47 and 48 of the Law on the Constitutional Court and Rules 39 (2) and 59 (2) of the Rules of Procedure, the Referral be declared inadmissible.

5. Case: KI 97/20
Applicant: Nehat Salihu

The subject matter of the Referral was the constitutional review of the Judgment [ARJ. UZVP. No. 140/2019] of the Supreme Court of Kosovo, of 19 November 2019. The Applicant in his Referral, has not specifically clarified which fundamental rights and freedoms guaranteed by the Constitution of the Republic of Kosovo, have allegedly been violated by the challenged Judgment.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with Article 113.7 of the Constitution, Articles 47 and 48 of the Law on the Constitutional Court and Rules 39 (1)(b) and (d) and 59 (1)(b) of the Rules of Procedure, the Referral be declared inadmissible.

6. Case: KI 145/20
Applicant: Hafize Gashi

The subject matter of the Referral was the constitutional review of the Decision [Rev.no.244/2020] of the Supreme Court of Kosovo, of 27 July 2020, in conjunction with Decision [Ac.no.265/2015] of the Court of Appeals of Kosovo, of 20 August 2020. The Applicant alleged that the challenged decision has violated her fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 22 [Processing Referrals] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, Article 20 of the Law on the Constitutional Court and Rules 39 (2) and 59 (2) of the Rules of Procedure, the Referral be declared inadmissible.

7. Case: KI 175/20
Applicant: Privatization Agency of Kosovo

The subject matter of the Referral was the constitutional review of the Decision [AC-II-15-0042] of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on the Privatization Agency of Kosovo Related Matters, of 21 July 2020. The Applicant alleged that the challenged judgment violated its fundamental rights and freedoms guaranteed by Articles: 3 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 46 [Protection of Property], 53 [Interpretation of Human Rights Provisions], 54 [Judicial Protection of Rights], 102 [General Principles of the Judicial System], 103 [Organization and Jurisdiction of Courts], 121 [Property] and 159 [Socially Owned Enterprises and Property] of the Constitution of the Republic of Kosovo, in conjunction with Article 6 [Right to a fair trial] of the European Convention on Human Rights.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with Article 21.4 and Article 113.7 of the Constitution, Article 20 of the Law on the Constitutional Court and Rules 39 (2) and 59 (2) of the Rules of Procedure, the Referral be declared inadmissible.

8. Case: KI 13/21
Applicant: Bleon Jerlija

The subject matter of the Referral was the constitutional review of an unspecified Decision of Central Election Commission (CEC), whereby the Applicant alleged that his fundamental rights and freedoms guaranteed by Article 24 [Equality Before the Law], 45 [Freedom of Election and Participation] of the Constitution of the Republic of Kosovo, have been violated.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 22 [Processing Referrals] of Law No. 03/L-121 on the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Review Panel proposed that, in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, Articles 20 and 48 of the Law on the Constitutional Court and Rule 35 (5) of the Rules of Procedure, the Referral be rejected.