Seitenhistorie

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Concepts, Challenges and Realities

Original Contribution by Martin Wählisch, currently based in Pristina (Kosovo), is Senior Researcher at the Center for Peace Mediation, Institute for Conflict Management, at the European University Viadrina, Humboldt-Viadrina School of Governance.

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The first decision of the Constitutional Court already attracted attention: The case Tomë Krasniqi vs. RTK et Al (Decision, Interim Measure, Case KI 11-09, October 16, 2009) brought down the collection of public broadcasting fees. The applicant, Tomë Krasniqi, a pensioner, petitioned for provisional measures to suspend the charging of Euro 3,5 for the public radio and television broadcaster RTK. Krasniqi stated that the fee represents 10% of his 40 euro retirement payment per month. Though no signal can be received in his area, the amount was directly deducted from his electricity bill. The Constitutional Court found this procedure unconstitutional. The Court ruled the collection system to be discriminatory for taking electricity counters as a reference point and not households. The practice was leading to absurd constellation, where citizens had to pay telecommunication fees for their elevator, as it had its own electricity counter. RTK is currently funded by the ordinary Kosovo budget until an alternative source of financing is found.

Wiki-MarkupNoticeably, the Constitutional Court flags decisions of the European Court of Human Rights besides referring to domestic law. The Court highlights Article 53 of the Kosovo Constitution for the interpretation of human rights provisions, which says that human rights and fundamental freedoms _“shall be interpreted consistent\[ly\] with the court decisions of the European Court of Human Rights.”_ Though the Republic of Kosovo is not an official signatory member state to the European Convention on Human Rights, it constitutionally committed to it. Thus, the Court explicitly states that case law by the European Court on Human Rights serves _“as our very basis while interpreting all our decisions”_ (Tomë Krasniqi vs. RTK et Al, Decision - Interim Measure - IM - Case KI 11-09, pp. 3-4), which illustrates firmly what the Athissari-Plan meant with “_adhering to internationally recognized standards and European best practices”._ A good indicator for the independence of the Constitutional judges and the dynamics between them is the existence of dissenting opinions. A local judge (Judge Gjyljeta Mushkolaj) and an international judge (Judge Almiro Rodrigues) opposed the majority vote.

Another major case is a judgment of the Constitutional Court in September 2010 regarding Fatmir Sejdiu, the first president of the Republic of Kosovo (Judgment, Case No. KI 47/10, September 29, 2010). The Constitutional Court ruled that Sejdiu had violated the constitution by concurrently holding two positions: one as president of the country and the other as leader of the Democratic League of Kosovo (LDK) party. Sejdiu argues that he had “frozen” his function as chairman of LDK after he was elected President of Kosovo. The constitution, however, does not support such an option. The Court analyses that: “One of the fundamental ways of winning the hearts and minds of the citizens who will vote in elections is the ability of a political party to be able to assert who is supportive of and will endorse the parties' positions and candidates. If a political party has the endorsement of the President of the Republic, it has a substantial political asset to further its political agenda and the election of its candidates for public office.” (para. 66) Given this ambiguity, the Court underlines the integrative role of the President within the system of separation of powers: “Bearing in mind the considerable powers granted to the President under the Constitution is it reasonable for the public to assume that their President, “representing the unity of the people” and not a sectional or party political interest, will represent them all. Every citizen of the Republic is entitled to be assured of the impartiality, integrity and independence of their President. This is particularly so when he exercises political choices such as choosing competing candidates from possible coalitions to become Prime Minister.” (para. 69) The Court concluded that Sejdiu had committed a violation of the Constitution under Article 88, para. 2, by remaining the recorded party leader of one the most prominent political parties while being the President of the country.

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