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Workshop about Judgements of the Constitutional Court and their Enforcement

Published: December 8, 2014

The IRZ invited members of the Constitutional Court and the Supreme Court of the Republic of Kosovo to a workshop in Mavrovo/Macedonia from 10 to 13 November 2014. It was the third conference of this kind, following previous events in Pristina and Thessaloniki. The first two workshops had dealt with a review of the main types of proceedings before the Constitutional Court – disputes between constitutional organs, judicial referrals, above all constitutional complaints against court rulings (primarily of the Supreme Court) and how decisions are made in both Courts - whereas this event focussed on topical questions of judgements of the Constitutional Court, ensuring their enforcement and on the enforcement itself.

The workshop in Mavrovo was well-attended with approx. 30 participants, 5 of them judges at the Constitutional Court and 12 judges at the Supreme Court. The discussions with the experts and between the members of the Courts were lively and enriching for both sides. Professor Dr Ulrich Karpen from the Law Faculty of the University of Hamburg gave an introductory presentation highlighting preliminary injunctions and final judgements with regard to their importance for the procedure between the Constitutional Court and the Supreme Court. The discussion focussed on two issues: The Constitutional Court decides on constitutional issues but not on the facts of a case. As in all countries with a constitutional jurisdiction, it is unclear in some individual cases what are the facts and what are legal issues. This also applies to Kosovo. These questions of delineation were discussed on the basis of individual cases well-known to the judges of both Courts. The second focus of the discussion was on problems related to referral. If the Constitutional Court considers a judgement of the Supreme Court as not being conform with the Constitution, it will declare the decision as invalid – as the constitutional text puts it – and remit the case to a court of ordinary jurisdiction. It is left to the discretion of the Constitutional Court to state which court is to continue proceedings or reopen the case: the Regional Court, the Court of Appeal or the Supreme Court. Explicit provisions do not exist. The discussion between the two Courts was fundamental and inspiring for both sides.

Dr Matthias Hartwig of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg gave an introduction into the relations between the European Court of Human Rights in Strasbourg and the national courts. Kosovo is not a member of the Council of Europe. Nevertheless, it is laid down in the Constitution that ECtHR judgements are directly applicable in Kosovo and prevail over the laws of Kosovo in cases of doubt, i.e. they have to be included in decisions at a constitutional level. This is a delicate topic, not only for Kosovo, but also for the Federal Constitutional Court.

All in all, the discussion was held at a high level marked by a strong awareness of the problems. The differences of opinion between the judges of the Constitutional Court and the Supreme Court were openly discussed and the judicial staff of the Constitutional Court showed strong commitment. It is a remarkable circumstance that all employees of the younger generation spent some time abroad during their studies or even graduated in another country. Accordingly, they are very proficient in English. The young generation is educated at a transnational, in some cases even at a global level, and is therefore also internationally minded.

It was discussed in informal talks at the conference, whether the cooperation of the IRZ with the Constitutional Court was worth being continued after three workshops, which in Professor Dr Karpen's opinion were successful, open-minded and targeted. It has been found that it is the seminars implemented by the IRZ which enable an open-minded dialogue between the two courts marked by a spirit of consensus and tolerance. The Constitutional Court is a young institution which has been governing the constitutional life in Kosovo since 2008. Before this new start, the Supreme Court used to be the highest judicial instance of the country since the Yugoslav era. It goes without saying that it takes a while to get used to a new constitutional situation in which the Constitutional Court may in some parts be perceived as a new "superior". The workshops of the IRZ are currently the only forum in which these issues can be openly discussed.