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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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In Kosovo, more than anywhere else in Europe, the Rule of Law is in the making. As one of the world’s youngest democracies, a Kosovo-specific concept of the Rule of Law is still at the beginning to take shape. Similar to other post-conflict settings, a gap remains between the Rule of Law de jure and the _ Rule of Law in praxi. _ The formalistic idea of the Rule of Law on paper is not yet what it is in reality. Since declaring independence in February 2008, Kosovo has been growing as a state. However, currently only recognized by 71 states (November 2010), the country lingers in a legal and political limbo. Recently in July 2010, the International Court of Justice ruled on the legality of Kosovo's secession. Stabilized by a NATO-led international peacekeeping force (KFOR) and an international EU law mission (EULEX), the republic is struggling with common matters of governance in transition: difficulties to access justice, corruption, parallel legal systems, and a slow judiciary. This paper aims to capture the evolution of the Rule of Law in Kosovo and to define its current status. Moreover, the objective is to contribute to a better understanding of the “Rule of Law” in general, particularly in regard to specific normative implications in various legal systems; here, the focus is on the Balkans. The analysis is comprised of four parts: an overview of the historical background (I.), a summary of normative provisions (II.), an assessment of the practice of the Rule of Law in Kosovo (III.), as well as a discussion of current and future challenges (IV.). |
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The stock of reviewed legal findings is still thin. Since From October 2009 until November 2010, the Constitutional Court issued issued five judgments, 16 decisions, and 19 resolutions (November 2010, http://www.gjk-ks.org/).
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.
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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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Delayed court judgments and randomness of administrative decisions lead to business planning insecurity, which have a clear impact on slowing down the economical progress of the country. Predictability and access to legal recourse will be essential to create trust, which might be the most crucial cornerstone for the Rule of Law. However, demands have to be realistic: Kosovo is internally coping with political balances, essential issues of reconstruction, state building (e.g. infrastructure, unemployment), and finally a transition of its legal elite, all of which will also effect the conceptual understanding of the Rule of Law.
