Kosovo

Workshop for Kosovar judges of the Constitutional Court and the Supreme Court in Budva / Montenegro

The IRZ invited members of the Constitutional Court and the Supreme Court of the Republic of Kosovo to a workshop in Budva/Montenegro from 20 to 23 April, dealing with the following topics:

• How to encourage referrals to the Constitutional Court by the Supreme Court and other regular courts of the Republic of Kosovo
• How to increase the awareness of the Supreme Court and other regular courts to file referrals with the Constitutional Court

The workshop in Budva dealt in-depth with similar events the IRZ had successfully carried out in Pristina/Kosovo, Thessaloniki/Greece and Mavrovo/Macedonia in previous years.

The event was very well attended with 36 participants, among them the President and the Vice-President of the Constitutional Court as well as the President and the former President of the Supreme Court. The Supreme Court was represented almost completely with eleven judges. Five out of seven judges of the Constitutional Court followed the invitation of the IRZ.

The two-day event focused on Article 113 (8) of the Constitution of the Republic of Kosovo. This Article is the core article regarding referrals by the regular courts and the Supreme Court if they are uncertain whether or not a decision is compatible with the Constitution. The Constitutional Court regrets that both the Supreme Court and the regular courts have made very little use of this provision since the Constitution of the Republic of Kosovo came into effect in June 2008. From the Constitutional Court's point of view the number of motions filed or referrals of procedures in accordance with this referral provision has fallen far short of expectations.

Professor Ulrich Karpen of the Law Faculty of the University of Hamburg opened the workshop with a comprehensive keynote about the issue of referrals of judgements by the regular courts and the Supreme Court to the Constitutional Court pursuant to Article 113 (8) of the Kosovar Constitution. The following discussions with experts and among the members of the courts were very lively and enriching and productive for both sides.

In his introductory keynote Dr. Matthias Hartwig from the Max Planck Institute for Comparative Public Law and International Law in Heidelberg dealt with the problem or the temptation of overextending constitutional decisions. Another issue addressed at this event was the compatibility of Kosovar law and human rights. In this context, comparisons with the decisions of the Federal Constitutional Court were made.

As the year before, the discussions were led at a high level. Disagreements between the two institutions were addressed openly. Particularly noteworthy in this context is the strong commitment of the Constitutional Court. The Court members contributed elaborate and superbly presented cases from their own practical work, which complemented the experts' presentations excellently.

Workshop about Judgements of the Constitutional Court and their Enforcement

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.