Notification on the published Judgment KO 139/21

The Constitutional Court of the Republic of Kosovo has published the Judgment in case KO 139/21, submitted by Fadil Nura and 9 other deputies whereby was requested the constitutional review of Decision No. 08-V-040 of the Assembly of the Republic of Kosovo of 21 July 2021 on the dismissal of the members of the Railway Regulatory Authority Board.

The Court, unanimously, decided that (i) the referral is admissible for review on merits; (ii) Decision [no. 08-V-040] of 21 July 2021 of the Assembly of the Republic of Kosovo is in compliance with paragraph 9 of Article 65 [Competencies of the Assembly] of the Constitution; and (iii) to reject the request for the interim measure.

The essence that the circumstances of the present case entail is related to the fact that the Assembly Committee for Agriculture, Forestry, Rural Development, Environment, Spatial Planning and Infrastructure, by Recommendation [no. 08/383/Do-2499] recommended to the Assembly to dismiss all the members of the Railway Regulatory Authority Board, on the grounds that the members of the aforementioned Board have failed to fulfill the duties defined by Law no. 04/L -063 on Kosovo Railways. As a result, on 21 July 2021, in the plenary session of the Assembly, voting was conducted regarding the aforementioned Recommendation of the relevant Committee for the dismissal of all members of the Railway Regulatory Authority Board by voting separately for each member.

The Applicants claimed before the Court that the challenged Decision, both in terms of content and procedure followed, is contrary to Article 4 [Form of Government and Separation of Power], Article 7 [Values], Article 65 [Competencies of the Assembly] and Article 142 [Independent Agencies] of the Constitution, as well as it violates the constitutional rights of the dismissed members of the Railway Regulatory Authority Board established in Chapter II [Fundamental Rights and Freedoms] of the Constitution, namely articles 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution, among others, because (i) the Assembly has exceeded its oversight competence provided by the Constitution in conjunction with Law no. 04/L -063 on Kosovo Railways, which defines the role of the Assembly in relation to the Railway Regulatory Board; (ii) the challenged Decision was not reasoned; and (iii) the dismissed members of the Board had no legal remedy to challenge the challenged Decision.

In assessing the relevant arguments and the circumstances surrounding the case, the Court first (i) assessed the admissibility of the Applicants’ allegations; (ii) elaborated the general principles established in the Constitution, including the competence of the Assembly in exercising the function of supervision of the Railway Regulatory Authority according to the provisions of Law no. 04/L -063 on Kosovo Railways; and (iii) general principles for the application of Article 142 [Independent Agencies] of the Constitution; as well as in conjunction with (iv) Article 31, Article 32 and Article 54 of the Constitution; and finally (v) applied these principles in the constitutional review of the challenged Decision of the Assembly.

Regarding the Applicants’ allegation of violation of Article 142 of the Constitution, the Court initially emphasized that both the Applicant and the Parliamentary Committee for Agriculture, Forestry, Rural Development, Environment, Spatial Planning and Infrastructure, despite the Court’s request for clarification, have not provided the necessary arguments to clarify whether or not the Railway Regulatory Authority falls within the scope of Article 142 of the Constitution, namely whether it can be qualified as an Independent Agency for the purposes of the aforementioned Article. Therefore, the Court in assessing the constitutionality of the challenged Decision was limited to the oversight role of the Assembly stipulated by paragraph 9 of Article 65 of the Constitution.

In the context of the competence of the Assembly foreseen by paragraph 9 of Article 65 of the Constitution, the Court assessed that the essence of the Applicants’ allegations is related to the competence of the Assembly to oversee the work of the Government and other public institutions, which based on the Constitution and laws report to the Assembly. In this regard, the Court, among other things, clarified that, according to paragraph 6.8 of Article 38 (Functioning of the Railway Regulatory Authority) of Law no. 04/L-063 on Kosovo Railways, it is provided that the Assembly can dismiss one or more members of the Railways Regulatory Authority Board, if it is assessed that they have failed to fulfill the issues presented, which they have an obligation based on this law, considering that in the present case this was the case, because the Committee for Agriculture, Forestry, Rural Development, Environment, Spatial Planning and Infrastructure, by Recommendation [no. 08/383/Do-2499], had argued the non-fulfillment of the duties of the members of the Railways Regulatory Authority Board established in Law no. 04/L -063 on Kosovo Railways. Therefore, as a result, the Court found that the Assembly, in the case of the dismissal of the members of the Railway Board by the challenged Decision, acted in the supervisory role as established in paragraph 9 of Article 65 of the Constitution and exercised the function defined in Article 38 of Law no. 04/L -063 on Kosovo Railways.

In this regard, the Court emphasized the fact that if the Assembly within its competences stipulated by paragraph 9 of Article 65 of the Constitution has supervisory competence, such a competence is subject to the definition and limitation specified by the relevant law. In the circumstances of the present case, considering the specifics of Law no. 04/L -063 on Kosovo Railways, the Court assessed that the Assembly in exercising its supervisory function had not exceeded the limits defined in the law approved by the Assembly, namely Law no. 04/L -063 on Kosovo Railways.

Finally, regarding the Applicants’ allegations of violation of Article 31 [Right to Fair and Impartial Trial], Article 32 [Right to Legal Remedies] and Article 54 [Judicial Protection of Rights] of the Constitution, the Court found that the Applicants’ referral regarding the alleged violations of the individual rights of the members of the Railway Regulatory Authority Board, was ungrounded because (i) the challenged Decision was based on the Recommendation of the relevant Committee which contained the reasons according to which the dismissal of the Board members was proposed; and that (ii) the Applicants have not substantiated that the legislation in force exempts this category of public officials from the obligation to seek legal protection before the regular courts. This Judgment will also be supplemented with a concurring opinion.

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 has been served to the parties involved in the case, is published on the Court’s website and will be published on the Official Gazette within set deadlines. To receive notifications on the decisions from the Constitutional Court please register at the Court’s website: https://gjk-ks.org/en/