Two-day professional exchange with the constitutional courts and the Supreme Courts

Kosovo, Republic of Albania

The German Foundation for International Legal Cooperation (IRZ) organised the specialist conference “Cooperation of ordinary general jurisdiction and constitutional court jurisdiction for safeguarding the rule of law – Experiences from Kosovo, Albania and Germany” on 17th and 18th May 2022 in Kosovo.

More than 80 judges as well as academic employees of both the constitutional courts and the Supreme Courts of the Republics of Kosovo and Albania shared their experiences with respect to allocation of rights and duties between the constitutional court jurisdiction and the ordinary general jurisdiction. On behalf of the IRZ, Prof. Dr Reinhard Gaier, Judge at the Federal Constitutional Court (former), made a significant contribution to the event from the German side.

In their welcome address, the four presiding judges emphasised the importance of a regional exchange of experiences across courts and were reminiscent of the development of the relationships of both the general jurisdictions.

The first panel of the conference dwelt on the responsibility of the constitutional courts and the role of the ordinary courts in constitutional interpretation of laws. In his keynote address, Prof. Dr Gaier presented the process of precise judicial review and differentiated between the judicial competence of each court and the monopoly of rejection of the Federal Constitutional Court. The four participants from the four courts represented later discussed the practical implementation of the concrete process of judicial review in Kosovo and Albania and discussed current developments and problems.

The second panel discussed the topic of obviously incorrect application of the law and legal interpretation by the ordinary general jurisdiction and proffered the possibility of a comprehensive consideration from the point of view of both constitutional courts and Supreme Courts. In the process, the case-law of the European Court for Human Rights (ECHR) as well as the German practice presented by Prof Dr Gaier was also included and discussed. In this context, Prof Dr Gaier stressed that the German Federal Constitutional Court examines only the constitutional law and limits its monitoring of the decisions of the ordinary courts only to violations of the constitution.

The first day of the event ended with lively discussions between the participants and a summarising of the conclusions by Prof Dr Gaier.

On the following day, the question of consolidation of the national case-law and legal certainty was discussed in a third panel, as an essential component of a fair proceeding. While the Albanian and Kosovan speakers mainly adduced to the case-law of the ECHR in this respect, Prof Dr Gaier highlighted this question – as per German practice – under the constitutional principle of rule of law.

The fourth and last panel focussed on the role of the ordinary courts in the full implementation of the judgements of the constitutional courts for compensating for breaches of human rights. In this context, interim relief due to lengthy proceedings and its effect on the ordinary general jurisdiction was discussed.

The event was received with great interest by the participants. The introductory speeches by Prof Dr Gaier and the subsequent presentations by the Kosovan and Albanian participants provided a basis for an intensive exchange on experiences as well as current developments and challenges in Kosovo and Albania. The participants also discussed possible solutions based on the respective legal systems.

The event was financed by the Federal Ministry of Justice within the framework of institutional cooperation.

The cooperation with the constitutional courts and the Supreme Courts of both countries is expected to be pursued and intensified in the future.

EUKOJUST

Kosovo

Since October 2020, the IRZ has been spearheading the implementation of the large-scale EU-funded grant project "European Programme/ Kosovo Justice Reform (EUKOJUST)" in an international consortium with Dutch partners CILC and the Ministry of Justice and Public Administration of the Republic of Croatia (MoJPA).

EUKOJUST has a volume of €7 million and a term of 40 months, and supports Kosovo's institutions to implement judicial reform and the Rule of Law Strategy, which emerged from a previous comprehensive review of the judicial sector in Kosovo.

EUKOJUST aims to bring Kosovo's judicial system in line with European and international standards and to strengthen the trust of the population in the judicial system. It also builds on the results from previous projects and implements consolidated and needs-oriented reform initiatives for the entire judicial sector under one umbrella organisation.

The beneficiaries of the project include the Ministry of Justice, the Kosovo Prosecutorial Council, the Kosovo Judicial Council, the Kosovo Judicial Academy, the legal department offices of the Prime Minister’s office, the staff of courts and public prosecution offices and independent legal professions, as well as judges, public prosecutors and also civil society organisations in the judicial sector.

The EUKOJUST project team consists of a 19-member international team, numerous international and national experts on site managed by the team leader, and implements a range of scheduled activities. It aims to strengthen capacity and inter-institutional coordination in the judicial sector, promote the independence and transparency of the judiciary, consolidate and align the legal and institutional framework, and to improve access to justice, in particular for women and marginalised or disadvantaged groups.

A project steering committee comprises representatives of the EU Delegation in Kosovo, the individual Kosovar ministries and the consortium members of the IRZ, CILC and the Croatian Ministry of Justice. The committee meets at regular intervals and steers and monitors the progress of the project.

Funded by the European Union

Expert discussion on a “specific judicial review”

Kosovo

On 22 February 2022, the IRZ and the Constitutional Court and the Supreme Court of the Republic of Kosovo, organised an online expert discussion on the theme of "specific judicial review".

Gresa Caka-Nimani, President of the Constitutional Court, Enver Peci, President of the Supreme Court and Frank Hupfeld, IRZ, opened the event, which included over 45 judges and academic staff of the Constitutional Court and the Supreme Court. In their opening speeches, the speakers emphasised the importance of the German-Kosovar exchange of expertise and experience in view of the comparatively recent case law history of the Kosovo Constitutional Court.

Radomir Laban, judge at the Kosovo Constitutional Court, first presented the legal framework and practice of the Constitutional Courts in managing a specific judicial review. On the basis on a detailed presentation of the seven judgments that have had legal effect to date, he discussed the case law of the Kosovo Constitutional Court with respect to the admissibility requirements of a specific judicial review. Shukri Sylejmani, judge at the Supreme Court, then examined the procedure for the specific judicial review from the perspective of the referring court. In addition to the role and requirements of the courts and parties, he also set out the challenges that arise in this context.

Following the Kosovar lectures, a number of speakers, on behalf of the IRZ, Prof. Dr. Dr. hc. Gertrude Lübbe-Wolff (former judge of the Federal Constitutional Court / Professor of Public Law at Bielefeld University) and Prof. Dr. Michael Eichberger (former judge of the Federal Constitutional Court / Honorary Professor at Eberhard-Karls University of Tübingen) outlined the German legal framework, practice and experience with the specific judicial review. Prof. Dr. Lübbe-Wolff first placed the instrument of specific judicial review in its historical and comparative legal context, and presented the procedure to the Federal Constitutional Court. Prof. Dr. Eichberger examined the subject matter of admissibility requirements and the scope of the review in more detail, and explored the potential content and effects of decisions during a specific judicial review before the Federal Constitutional Court.

The virtual expert discussion was characterised by the active participation of the participating judges and an overall very open and trusting atmosphere. The participation of German experts enabled the participants to take a comprehensive look at the legal foundations, procedural processes, admissibility requirements and handling of the specific judicial review in Kosovo with reference to German legal practice. The exchange of expertise and experience between the German and Kosovar judges and legal practitioners also offered the opportunity to identify best practices and approaches to solutions for the Kosovar context along with the challenges.