International(ized) Constitutional Court: Kosovo’s Transfer of Judicial Sovereignty

Enver Hasani
  • Corresponding author
  • Faculty of Law, University of Prishtina, former President of the Constitutional Court of Kosovo, Rr Agim Ramadani, pn, 10000, Prishtina
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and Getoar MjekuORCID iD: https://orcid.org/0000-0001-9597-2256

Abstract

This paper discusses the transfer of judicial sovereignty in Kosovo from a comparative perspective. In particular, it addresses the transfer of constitutional jurisdiction to the Special Court of Kosovo. This court was formed as a result of Kosovo’s commitment to address allegations made by the Council of Europe in a document known as the Dick Marty report. The report alleges that war crimes and crimes against humanity and international law were committed during and in the aftermath of the Kosovo war (1998–1999). It took several years for the Court to be formed as constitutional amendments, legal infrastructure, and other practical steps were needed to make the Court operational. These preparatory measures have been taken, but practical results are missing, and there is fear that the Court might end up like previous UN- and EU-led justice systems, which did too little and were too late to address the culture of impunity in Kosovo.

1 Introduction

La souveraineté est la puissance absoluë et perpétuelle d’une République’, wrote Jean Bodin in 1583.1 The French jurist defined sovereignty as the ultimate and perpetual power of a political body. Common sense would make it inalienable. Yet peoples and monarchs have transferred their sovereign powers throughout history. The colonial era produced many legal documents that gave European empires full sway over new lands. The controversial Treaty of Waitangi handed over New Zealand to the British Crown in 1840,2 and the Treaty of Fez made Morocco a French protectorate in 1912.3 And while many former colonies have now become sovereign states, transfer of sovereignty has persisted and taken on new forms and purposes.

Nowadays, transfer of sovereignty is typically partial, involving specific powers (legislative, executive, or judicial) and specific terms. International bodies have also placed limitations, as they did with League of Nations mandates and internationalized territories after World War I.4 European countries have delegated authority to supranational organizations such as the European Union or the Council of Europe. Bosnia and Herzegovina exchanged sovereign powers for guarantees of peace and protection of ethnic communities.5

Speaking of sovereignty, legal philosopher Jean Étienne-Marie Portalis noted the judiciary as an essential duty of the sovereign.6 Here, Kosovo makes an interesting case study: the young European nation has transferred certain judicial powers to a special, internationalized institution seated at The Hague.

The transfer is temporary and voluntary. It is, however, done to comply with Kosovo’s international obligation to investigate and try alleged crimes committed during and after the 1998–99 war with Serbia. The crimes fall under the jus cogens category, the part of international law that no state may derogate from. Moreover, Kosovo must address the issue before it may join the European Union. But the Specialist Institution – consisting of specialized court chambers, an ombudsman, and a special prosecutor’s office, and commonly known as the Special Court for Kosovo – is formally established by Kosovo law.

This article discusses the development of Kosovo’s Special Court with a focus on constitutional jurisdiction. We begin with a brief history of Kosovo, tracing the exercise of constituent power that founded the state of Kosovo. In a second part, we discuss past and current limitations on Kosovo’s constitutional jurisdiction and the developments leading to the Special Court. We then describe the structure and functioning of the Court, review the decisions of its constitutional chamber, and point out potential and forthcoming issues of a constitutional nature.

It took the Special Court about two years of setup and preparations before it sent out the first summons for early January 2019. Its success remains to be seen. But discussing Kosovo is important, for it reflects a trend seen elsewhere in the region of Southeast Europe and other post-conflict societies.7

It also helps explain how European integration may help address human-rights issues and improve the rule of law throughout the continent.

2 Peaceful resistance, war, independence: A brief history

2.1 Dissolution of Yugoslavia, independence movement, and peaceful resistance

Kosovo came under the global radar with the fall of communism and the dissolution of the Yugoslav federation that began in the late 1980s.8 Until then, Kosovo had been an autonomous province, a part of the Republic of Serbia, and a federal unit of Yugoslavia.9 At the behest of Serb nationalists, Yugoslavia moved to minimize or practically revoke Kosovo’s autonomy. But the Kosovar authorities opposed the act as illegal, and the provincial assembly eventually counteracted by declaring Kosovo a Yugoslav republic, separate from Serbia, on 2 July 1990.10

An expression of popular will, the July Declaration was an attempt at exercising pouvoir constituant originaire – or the original constituent power, which under modern constitutional theory is held inalienably by the people.11 The act was published in the official gazette the next day,12 but its effects were limited as Serbia turned to military and police force to quell Kosovar dissent. The ethnic Albanian population and non-Serb minorities, nonetheless, remained loyal to the newly established republic, and working clandestinely, set up a parallel state with independent healthcare and school systems.13

In the meantime, the Yugoslav federation came to an end. Weary of Serbia’s increasing influence, smaller republics declared their independence and were recognized as sovereign states by 1992. Slovenia, Croatia, Macedonia, then Bosnia and Herzegovina parted ways with the old federation. Kosovo, too, held an independence referendum in October 1991, although its effect consisted of a mere moral statement against Serbian occupation.14

Serbia, the largest republic, and Montenegro, the smallest, chose to keep their ties. In 1992, they formed the new Federal Republic of Yugoslavia, hoping that the retained name would grant them the right of continuation to the former state. The international community ruled otherwise, and FRY, as the Serbian-Montenegrin union was often called, became a new state and a mere successor to the former federation.15 The will of the people produced new sovereigns in the Yugoslav republics, but also lured them into a series of devastating wars.

As the Croatian and Bosnian conflicts ended in 1995, Kosovo’s case remained unresolved. Kosovar leaders had long called for peaceful resistance, skilfully avoiding the costly conflicts that ravaged other parts of the region. But treated as second-class citizens under Serbian dictator Slobodan Milošević and feeling abandoned by the international peace efforts, Kosovars shifted course. In 1996, the country observed the first signs of an armed resistance, with attacks carried out against Serbian police and military units in Kosovo.16

2.2 The Kosovo War (1998–1999)

Kosovo’s segue into war became all the more clear by November 1997. As people gathered in an impoverished village to attend the funeral of a school teacher killed by Serbian forces, uniformed soldiers appeared in public on behalf of Ushtria Çlirimtare e Kosovës – the Kosovo Liberation Army (UÇK or KLA).17 The guerilla organization claimed responsibility for attacks on Serbian targets, and the Milošević regime retaliated with mass atrocities against civilians, leading to a full-scale conflict. Most historians agree that the Kosovo War began in late February 1998.

Fearing a spillover into neighbouring countries, the West rushed to mediate an end to the fighting. Serbia promised peace, but did not deliver, while civilian massacres in Kosovo revealed Milošević’s true goal of territorial expansion through ethnic cleansing of non-Serbs.

As violence intensified in 1999, the international community summoned Kosovo and Serbian representatives to a conference in Rambouillet, France. The conference brought about the Rambouillet Accords, a document providing for peace, self-rule, and human and minority rights.18 The Kosovo Albanian delegation set their hands to it on 18 March 1999; the Serbian team refused. By rejecting peace and continuing his brutality against Kosovo, Milošević cleared the way for military intervention.19

On 24 March 1999, NATO began an air campaign against Serbian forces. After 78 days of bombing, Milošević agreed to withdraw from Kosovo, and a NATO peacekeeping force prepared to take over.20 On June 10, the UN Security Council adopted Resolution 1244 placing Kosovo under an interim international administration, which would last until a final determination of Kosovo’s status.21 This occurred some nine years later with Kosovo’s Declaration of Independence in 2008.

2.3 International administration and Declaration of Independence

Independence did not transpire in vacuum. Realizing the status quo could not be maintained, the United Nations appointed former Finnish president Martti Ahtisaari to lead Kosovo–Serbia negotiations, which began in 2006. The parties maintained irreconcilable positions throughout: Kosovars wanted independence, while Serbia insisted on ‘substantial autonomy’.22

In 2007, President Ahtisaari put forth his proposal, which implied supervised independence and included guidelines for a new constitution with a wide set of guarantees for ethnic Serbs and other groups.23 As Serbia rejected the deal, new talks ensued, led by a Troika of Americans, Europeans, and Russians, but to no avail.24 In the meantime, Kosovo accepted the Ahtisaari Plan and prepared to give it full meaning through a new constitution.

The Troika talks failed in early 2008, and Kosovo moved to unilaterally declare its statehood. With Western backing, the Kosovo Assembly adopted the Declaration of Independence on 17 February 2008. The exercise of original constituent power succeeded this time, as most nations have recognized Kosovo as a sovereign state to date.

The 2008 Declaration, however, committed to the Ahtisaari Plan and certain obligations under Resolution 1244. Hence Kosovo entered a period of supervised independence. The UN administration handed key responsibilities to a EU rule-of-law mission known as EULEX and the International Civilian Representative (ICG), as provided by Ahtisaari.25 EULEX’s role was of a sovereign nature and involved the police and the judiciary. An international body, consisting of Americans, Europeans, and Russians, was set up to oversee EULEX and ICG through the end of supervised independence in September 2012.26

The Kosovo Constitution, which entered into force in 2008, was accordingly amended to reflect the end of international supervision.27

2.4 Kosovo’s independence at the International Court of Justice

In an effort to undermine Kosovo’s statehood, Serbia succeeded in referring the matter to the International Court of Justice.28 The referral initially asked whether Kosovo had the right to secede. But the ICJ reframed the question, as allowed by its statute, to inquire whether Kosovo’s Declaration of Independence violated the rules of international law.29 It held that it did not. Two key aspects deserve our attention here.30

Firstly, international law had always remained neutral on the formation and disappearance of states. Exceptions exist for the illegal use of force, genocide, apartheid, or other violations of jus cogens norms. Such was not the case with Kosovo when it declared its independence in 2008, hence the ICJ found no violation of international law. Had it ruled otherwise, Kosovo’s survival would have been at stake.31

Secondly, the ICJ implicitly acknowledged the Declaration as an exercise of the people’s constituent power. The 2008 act took place outside of the legal order set up by the UN administration, and established instead a new legal order based on the free will of the people.32 While the ICJ does not mention pouvoir constituant, the discussion is clearly about a decision of the people to determine their political future. This is the essence of constituent power, which belongs to the people.33 Others may not annul Kosovo’s Declaration of Independence. But it is up to other sovereigns to decide whether they wish to recognize Kosovo as a state. The overwhelming majority has already done so.

2.5 The hierarchy of norms in independent Kosovo

While historical rivals in their efforts to define modern constitutional law, Carl Schmitt and Hans Kelsen shared similar views as to the hierarchy of norms. Their take is important in understanding the hierarchy of norms in independent Kosovo and why Kosovo could be said to have transferred its sovereign powers.

Carl Schmitt distinguished between the constitution and constitutional law. The Declaration of Independence is a constitution in the sense used by Schmitt – that is, a political decision of an existential nature defining Kosovo’s political existence as a sovereign and independent country. Comparing the experiences of several nations, the German jurist considered as constitutions the political accord of American states to form the current federation in 1775, the French determination to change the form of government in 1791, the Czechoslovak proclamation of a new state in 1918, and Germany’s 1919 decision to establish a republican regime. The constitutional laws, on the other hand, were merely documents based on the constitution as a decision. As such, they delineated norms and rules to regulate the country’s political existence.34

Similarly, in Kelsenian terms, the Declaration of Independence became ‘the historically first constitution’ or the grundnorm that precedes other documents. Kelsen likened the grundnorm to a deity whose existence we presume but do not contest. The 2008 Declaration is hence the state’s founding instrument that represents the exercise of original constituent power and a break with the past; all else derives from this act.35

The 2008 Declaration indeed made a promise to implement the Ahtisaari Plan and to adopt a constitution along its lines. This is a unilateral commitment with an erga omnes effect – it was made towards the international community as a whole. But the Declaration is the grundnorm, which is presumed, and forms the basis for the Ahtisaari Plan and the 2008 Constitution.36 As to the latter two, the Declaration sanctioned the Plan’s provisional supremacy (for the period of supervised independence).37 Ahtisaari was the very reason for the adoption of the 2008 Constitution, hence the Ahtisaari Plan comes at the top of constitutional norms.38

This provisional hierarchy of norms is attributed to the role of the international community. Participating in the exercise of Kosovo’s constituent power, internationals left their mark as they have done in many post-conflict societies.39 In this context, the 2008 Constitution should be seen as a process serving multiple goals rather than a single constitutive act, which it was not.

3 Past and present limitations on constitutional jurisdiction

3.1 Supervised independence

The 2008 Constitution provides for a Constitutional Court with broad jurisdiction.40 But transitional provisions affected the Court’s power and composition. We focus on jurisdictional constraints here. The limitations were rooted in the temporary hierarchy of norms: for the period of supervised independence, the Constitution was subject to the Ahtisaari Plan.

Several Constitutional Court rulings discuss Ahtisaari’s supremacy during the supervised independence, while others examine its ‘letter and spirit’ in post-supervision Kosovo.

The first two cases dealt with the Ahtisaari obligation to adopt a law on the restitution of property confiscated by the communist regime.41 Citing the Ahtisaari Plan as supreme authority in a 2010 ruling, the Court acknowledged Kosovo’s duty to legislate, but ultimately rejected the claim on procedural grounds: the petitioner had yet to exhaust available legal remedies through the regular judiciary.42 The Court discussed the matter again that year, finding a constitutional omission in the Assembly’s failure to pass the property restitution law,43 but declined to rule on the merits of the case.44 The regular judiciary had ruled in a similar fashion, too.45

In the third Ahtisaari-related case, the Constitutional Court applied the Plan and the 2008 Constitution equally in holding that the Supreme Court was vested with the nomophylactic function, ie the duty to ensure the uniform application of laws. This duty extended to the Supreme Court’s special chamber handling privatization matters.46

The turning point arrived in 2012. As Kosovo prepared for the end of supervised independence, the Constitutional Court cleared constitutional amendments that would remove transitory provisions, including clauses recognizing Ahtisaari’s supremacy.47 With the amendments’ entry into force, the Kosovo Constitution became the sole highest law of the land.48

The constitutional tribunal no longer applies the Ahtisaari Plan. In reviewing two laws on cultural heritage in 2012, the Court maintained that the Constitution was sufficiently clear in its protection of ethnic, religious, and cultural groups, and that Ahtisaari provisions on diversity and communities had been transposed onto the highest law.49 Similarly, in a 2016 judgment, the Constitutional Court noted that the 2008 Constitution embodied the Ahtisaari spirit in recognizing the right to self-government.50

In sum, Constitutional Court jurisdiction was not necessarily limited in terms of the matters that could be heard, but in terms of the law that had to be applied. The Court was bound to uphold the Ahtisaari Plan over the 2008 Constitution during the period of supervised independence.

As supervision neared its end in 2012, however, new limitations appeared on the horizon. They have to do with the Special Court and its specialized jurisdiction.

3.2 The Special Court and new limitations

While Ahtisaari expired in 2012, Kosovo kept EULEX. Through an exchange of letters with the European Union, the Kosovar president struck a deal to extend EULEX’s mandate.51 The letters were duly ratified by a two-thirds vote in parliament, for they constituted a political treaty and a transfer of sovereignty under articles 18.1 and 20. The EU mission retained its original rule-of-law role, but prepared for new challenges that unravelled after Kosovo became independent – investigating wartime crimes.

In April 2008, shortly after she left the International Criminal Tribunal for the Former Yugoslavia, prosecutor Carla Del Ponte made a comeback with a sensational book on Kosovo. Written in collaboration with Chuck Sudetic, the memoir presented allegations of serious crimes committed during and after the Kosovo conflict.52 It implicated the most senior KLA leaders, including then-prime minister (and now president) Hashim Thaçi.53

While Thaçi dismissed Del Ponte’s work as fiction, the Council of Europe, the human-rights organization of 47 European states, took the matter into its hands. The CoE Parliamentary Assembly (PACE) appointed its member Dick Marty, a former prosecutor and senator in Switzerland, to investigate the allegations.54 Marty submitted his report in late 2010, and PACE adopted it through its own resolution in January 2011.55

Marty presented allegations of war crimes and crimes against humanity and international law committed during the 1998–99 conflict and its aftermath. The year 2000 was set as a cut-off. The alleged crimes were of a transnational character, as they involved the trafficking of persons from Kosovo into northern Albania. Noting the reason behind his work, Marty complained of a culture of impunity dominating post-war Kosovo and the UN and EULEX missions when it came to investigating or prosecuting the former KLA leaders who now held important positions in government.56

Further, ending impunity was formally added as a condition for European integration in 2015, when Kosovo signed a Stabilisation and Association Agreement with the EU.57 But the anti-impunity obligation first came to life with the 2012 agreement on EULEX’s extended stay. The EU rule-of-law mission was granted two more years in Kosovo, but received an indefinite mandate to investigate Marty’s allegations through its Special Investigative Task Force (SITF).58

SITF enjoyed functional independence from the rest of the mission. Following a thorough investigation, the head of the task force urged Kosovo authorities to enable prosecution. As it stood, SITF had a full mandate to investigate and prosecute crimes, but had nowhere to file indictments.59

Kosovo and EU renewed their EULEX deal once more in 2014, this time pledging to establish a specialized mechanism to prosecute and try the investigated crimes. This mechanism – now colloquially dubbed the ‘Special Court’ – would be set up within the Kosovo judicial system but transferred outside of Kosovar territory as needed.60 For this purpose, the Kosovo Assembly amended the Constitution in 2015, following a review of the proposed amendment by the Constitutional Court.61

As we will discuss in the following sections, the amendment has limited the jurisdiction of the Constitutional Court in Prishtina, transferring its powers to a constitutional chamber at The Hague.

4 Nature and makeup of the Special Court

4.1 An independent, internationalized institution

Known as Amendment 24 or Article 162 and drafted under Western guidance, the Special Court provision has turned international actors into co-owners of Kosovo’s pouvoir constiutant dérivé.62 (Unlike original constituent power, which builds a sovereign entity from scratch, the derivative type is the power to amend an existing constitution.) Here, the Special Court is a product of derivative constituent power and equally an integral part of an internationally run project of state-building in Kosovo.63

The Special Court functions under the laws of the Republic of Kosovo, but is independent of the entire Kosovar system. As scholars have noted, ‘[b]y creating an internationalized institution – with the partnership, sponsorship, and firm encouragement of the EU – the government of Kosovo has taken significant and somewhat unusual steps to ensure the SC is independent from other domestic authorities.’64

The emphasis on the institution’s internationalized nature deserves our attention as much as its independence. The Special Court is not a hybrid court in the classical sense, nor is it an international court. Hybrid tribunals consist of foreign and domestic judges sitting on the same bench. That is not the case here: no Kosovo citizens works or is allowed to work at the special institution, whether as a judge, prosecutor, or in any other capacity. Moreover, the Court’s finances, privileges, immunities, and (most) applicable law are not of Kosovar origin or under Kosovar control.65 Other scholars have described the Kosovo Special Court as a mixed regional criminal tribunal, given the involvement of the EU and the Council of Europe in the Court’s establishment and considering that its subject-matter jurisdiction and applicable substantive law stem from and have implications both within and outside Kosovo.66

On the other hand, the Special Court differs from international courts – such as the international tribunals for the former Yugoslavia and Rwanda – because it is part of the Kosovo justice system.

Having rule out hybrid and international definitions, we match the purpose, goal, and function of the special institution to the category of internationalized courts. The legal basis for hybrid and international courts is rooted in international law (whether general or regional), while internationalized courts spring from domestic law (including national constitutions).67 Kosovo’s Special Court is based on Amendment 24 (now Article 162), which has internationalized certain functions of national institutions (with regard to public prosecution, the regular judiciary, constitutional justice, and the ombudsperson). Here, Kosovo presents distinguishing features of internationalization. First, the Special Court exists separately and alongside domestic authorities in Kosovo. Second, while a Kosovar institution, the Special Court is run by internationals with Kosovars having no say in its operations. This, in fact, makes Kosovo a somewhat unique case.68

Yet internationalized constitutions and the resulting institutions typically limit national sovereignty and legitimize a culture of inequality between domestic and international actors.69 This has also occurred in Kosovo. But the case shouldn’t be seen from the angle of inequality; it should rather be viewed as implementing a state’s obligation to accommodate international law (general or regional). Internationalized constitutions and their products, as a form of transferred sovereignty, always stem from an international obligation. Kosovo adopted Amendment 24 to fulfil its obligation towards the EU and the rest of the international community to put an end to the culture of impunity in certain areas and for certain crimes.70

4.2 Structure, functioning, and jurisdiction

As noted, the Special Court (or the Specialist Institution) is the umbrella term for a network of bodies: the specialist chambers of each court instance of the regular judiciary, the specialist chamber of the Constitutional Court, the specialist prosecutor’s office, the special ombudsman, and other support offices.

The Special Court will handle only matters related to the Dick Marty allegations. The Specialist Prosecutor’s Office is in charge of prosecution, and specialist chambers exist for each tier of the regular judiciary. They all perform their duties independently of the Kosovo system, albeit on behalf of the Republic of Kosovo. Similarly, the specialist chamber of the Constitutional Court functions independently of the Constitutional Court established under Chapter VIII. In other words, Kosovo has two constitutional courts: the original one in Prishtina and its twin at The Hague.

Article 162, as amended, now takes precedence over other provisions. It begins with ‘Notwithstanding any provision in this Constitution’ – all 14 paragraphs come afterwards. Paragraph 1 states:

To comply with its international obligations in relation to the Council of Europe Parliamentary Assembly Report Doc 12462 of 7 January 2011, the Republic of Kosovo may establish Specialist Chambers and a Specialist Prosecutor’s Office within the justice system of Kosovo. The organization, functioning and jurisdiction of the Specialist Chambers and Specialist Prosecutor’s Office shall be regulated by this Article and by a specific law.

Under paragraph 2, the Special Court must protect human rights guaranteed by the Constitution and international instruments. This is as far as the prosecutor and regular judiciary are concerned. Paragraph 3 establishes the constitutional chamber:

A Specialist Chamber of the Constitutional Court, composed of three (3) international judges appointed in addition to the judges referred to in Article 114 (1), shall exclusively decide any constitutional referrals under Article 113 of the Constitution relating to the Specialist Chambers and Specialist Prosecutor’s Office in accordance with a specific law.

Paragraph 3 hence determines the chamber’s composition: its three judges will be distinct from their colleagues serving in Prishtina, appointed under Article 114 (1). Further, the Hague panel handles constitutional referrals on the subject matter of the Special Court. Put plainly, the three-member chamber interprets the Constitution as it relates to the work of the specialist prosecutor and the specialist chambers of the regular judiciary.

The following provisions of Article 162 govern operational aspects, international agreements in support of the Special Court, rules of evidence, office locations, place of detention and imprisonment, and working languages, among other matters.71 Paragraph 10 leaves appointment, oversight, and administration of the Special Court to international agreements, special laws, or internal arrangements.72 The Special Court will include an ombudsman’s office under paragraph 11. Finally, the mandate will be five years unless it is shortened before by decision of the EU Council.73

The Kosovo Assembly has further adopted a detailed law regulating the jurisdiction and functioning of the Special Court: Law 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office.74 This article focuses only on constitutional jurisdiction.75

4.3 Constitutional proceedings: Rules, authorized parties, time limits, legal effect

Unlike its Prishtina counterpart, the Hague constitutional chamber is bound only by the Constitution and Law 05/L-053 as lex specialis.76 No other Kosovo law, regulation, other secondary legislation, rule, custom, or practice that has not been expressly incorporated into Law 05/L-053 will apply to the organization, administration, functions, and jurisdiction of the Special Court for Kosovo; the special law prevails over any and all contrary provisions of other Kosovo laws.77 Therefore, the Law on Constitutional Court78 does not apply in the proceedings before the Special Court for Kosovo, as it is not expressly incorporated into Law 05/L-053.

Article 49 of Law 05/L-053 governs the constitutional panel:

The Specialist Chamber of the Constitutional Court shall be the final authority for the interpretation of the Constitution as it relates to the subject matter jurisdiction and work of the Specialist Chambers and the Specialist Prosecutor’s Office.

The Specialist Chamber of the Constitutional Court shall have jurisdiction over any referral to the Constitutional Court made by persons authorised to make referrals under Article 113 of the Constitution which relates to or directly impacts the work, decisions, orders or judgements of the Specialist Chambers or the work of the Specialist Prosecutor’s Office.

[…]

Both Prishtina and Hague panels apply Article 113 of the Constitution governing jurisdiction and authorized parties. Their status does not change, meaning that Article 113 applies, mutatis mutandis, to all authorized parties in proceedings before the Constitutional Court at The Hague, as long as their referrals deal with the work, decisions, orders, or judgments of the Special Court for Kosovo.79

In practical terms, only one of the Article 113 parties has unfettered access to the Hague chamber. Paragraph 11 of Article 162 now authorizes ‘the Ombudsperson of Kosovo [to] also refer matters as provided by Article 135 (4).’80

This reference here is to the original ombudsperson (Albanian: Avokati i Popullit or Ombudspersoni i Kosovës).81 Established under Chapter XII of the Constitution, the original institution is distinct from the special ombudsperson (Albanian: Ombudsperson i veçantë) seated at The Hague. The special ombudsperson, as introduced by Amendment 24, is regulated by the special law and is not subject to the ombudspeson law.82 Thus, the Prishtina ombudsman may also refer cases to the Hague Constitutional Court.

This is further clarified in Article 49.5 of the Special Court law regulating constitutional petitions:

In accordance with Amendment nr 24 and Article 135(4) of the Constitution, the Ombudsperson of the Specialist Chambers appointed under Article 34(9) of this Law, and the Ombudsperson of the Republic of Kosovo, may make referrals under Article 113(2) to the Specialist Chamber of the Constitutional Court.

Of the two bodies, however, the Hague twin is granted a privileged position. The Prishtina ombudsperson may bring cases to the Hague constitutional chamber only insofar as they concern the jurisdiction of the Special Court. If the Prishtina institution fails to act, however, the Hague ombudsperson may step in with referrals concerning: (i) the compatibility with the Constitution of laws, of decrees of the President or Prime Minister, and of regulations of the Government, or (ii) the compatibility with the Constitution of municipal statutes.83 The doubled jurisdiction here will ensure that one ombudsperson will defend human rights if the other is unable or unwilling to do so.

Law 05/L-053 has authorized the Special Court to pass its own rules of procedure (RoP), which govern among other issues time limits and other filing requirements. The relevant provisions are found under Rule 6.84

Decisions carry the same legal effect, whether issued by the Constitutional Court at The Hague or the Constitutional Court in Prishtina. In this regard, the 2008 Constitution applies directly: Article 116 governs the legal effects of Constitutional Court decisions. Amendment 24 did not deal with the effects of decisions, leaving Article 116 entirely unchanged.

5 The constitutional docket at The Hague

The Special Court is yet to complete a criminal case.85 The institution spent most of 2017 and 2018 consolidating its legal and organizational infrastructure, recruiting its administrative staff, and resolving peripheral matters. It was not until December 2018 that the Specialist Prosecutor made the headlines with the first (major) summons and orders directed at former KLA members.86

The constitutional chamber has also produced limited work, with its roll counting three important rulings out of a total of five files.87 What follows is an overview of the three rulings – two judgments and one order – and a prognosis of potential cases before the Constitutional Court at The Hague. (We do not discuss the decisions on venue and on electing the chamber’s president.88)

The two judgments evaluate the constitutionality of the Rules of Procedures of the Court (RoP). The president of the Court initiated the procedures sua sponte, as required by Law 05/L-053.89 The first judgment was issued on 26 April 2017,90 and the second on 28 June 2017.91 For expediency, we refer to the first ruling as the ‘April Judgment’ and to the second as the ‘June Judgment’.

The April Judgment found that the RoP violated Kosovo’s Constitution and order that RoP be revised.92 The Plenary of the Special Court for Kosovo respected the Constitutional Court findings and revised and expanded the RoP. In its June Judgment, the constitutional panel reviewed the improvements and found they complied with the April ruling and the Kosovo Constitution.

Finally, as the Specialist Prosecutor moved to interview KLA members, the latter petitioned the Constitutional Court at The Hague to halt what they viewed as violations of fundamental rights. The Court initially granted temporary relief, but later dismissed the case after the prosecutor withdrew the contested order.93

5.1 April judgment on RoP

The Court first laid out three principles that would guide its interpretation of the RoP.94First, it adopted a principle of strict and intensive control of constitutionality in all cases related to Chapter II of the Constitution, which defines fundamental rights and freedoms. Special attention would hence be paid to ensure the highest standards of human rights, but only those rules that were clearly unconstitutional would be struck down.95Second, the Court committed to analyse the rules textually, such that provisions whose language was ‘manifestly contrary to the tenor of the Constitution’ would be found to be in violation of the highest law.96Third, the Court adhered to the principle of harmonious interpretation, taking into account the entirety of the RoP, so that none of the rules may be interpreted in isolation.97Finally, The Hague chamber emphasized Article 53 of the Constitution, mandating that ‘human rights and fundamental freedoms guaranteed by this Constitution shall be interpreted consistent with the court decisions of the European Court of Human Rights.’98

Adhering to the guiding principles, the Court reviewed a total of 208 norms, of which nine were found to have serious constitutionality problems – that is, they were not in conformity with Chapter II of the Constitution. Here we discuss the Court’s analysis of rules 19, 31–33, 35–36, 38, 54, 134, 158 of the RoP, as they were initially adopted by the Plenary of the Special Court on 17 March 2017.99

5.1.1 The right to fair trial

The first violation hinged on the right to a fair trial. As originally adopted, Rule 19(3) permitted a hearing to continue before two members of a panel whenever third member was absent. Noting legal provisions for hearings before a single judge or a panel of three judges, the constitutional chamber found Rule 19 (3) to be inconsistent with the Article 31.2 guarantee of ‘a hearing before a tribunal established by law.’100

5.1.2 The right to privacy and permissible limitations – ‘by law’ and ‘to the extent necessary’

Rules 31, 32, and 33 were found to infringe on the right to privacy under Article 36. The rules permitted special investigative measures, including the interception of private communications.101 But the Court struck them down as lacking the requisite safeguards for human rights.102

Under Article 55 of the Constitution, fundamental rights may be limited only ‘by law’103 and ‘to the extent necessary for the fulfillment of the purpose of the limitation in an open and democratic society.’104 European jurisprudence further requires that the law be accessible and its effects foreseeable, and lays out a list of minimum safeguards in interception and surveillance cases.105 Here, the rules were too vague to pass a constitutional test: they did not specify the categories of persons that could be affected, the duration or the measures, or the retention and destruction of data.106

5.1.3 The right to personal integrity and the right to privacy

In reviewing rules 35, 36, and 38, the Constitutional Court identified inconsistencies with the rights to personal integrity and privacy guaranteed by articles 26 and 36 of the Constitution.107

Rule 35 provides for search and seizure operations to be conducted by the Specialist Prosecutor without prior judicial authorization.108 The Court confirmed that a clear legal framework and strict limits on such powers are required to protect people’s privacy ‘from arbitrary interference’.109 Rules 35 (1) (b) and 35 (1) (c), allowing the Specialist Prosecutor to search any property or person and seize any items, were too extensive to meet the ‘necessity’ requirements of Article 36.2.110 The Court further found that the ex post facto judicial review under Rule 35 (3) did not include an assessment as to the proportionality of the measure.111 Thus, provisions of Rule 35 failed to confine searches and seizures to what was ‘necessary’ in a democratic society.112

Rule 36 of the RoP is concerned with the execution of search and seizure operations. The Constitutional Court found that rules 36 (1) and 36 (2) were not sufficiently precise as to their applicability and operation. Therefore, they did not comply with the quality-of-law requirement of Article 55.1.113

Rule 38 provided for expert examinations of bodily matter. Paragraph 38 (1) allowed the Specialist Prosecutor to order an expert examination for the collection of bodily materials, such as hair, saliva, or other swab samples.114 The Constitutional Court considered that samples from a person – as opposed to objects a person had been in contact with – could not be obtained without bodily intrusion, however minor such intrusions may be.115 Rule 38(1) lacked sufficient safeguards for cases where a person might withhold consent to the collection.116 Therefore, the Court found it inconsistent with the requirement of ‘necessity’ under Article 55.2 of the Constitution.117

The Hague panel also found that Rule 38 (5) unconstitutionally provided for the lengthy retention of all bodily materials, including cellular samples, without a case-by-case assessment of necessity.118 The Court found that the retention of bodily materials failed to strike a fair balance between competing public and private interests, as would be required by Article 55.4.119

5.1.4 The right to liberty and security

Rule 54 governs the review and reconsideration of detention on remand. The Constitutional Court found that the original Rule 54 (4) called for scrutiny and further clarity.120 On a plain reading, the provision would make the release of a detained person entirely dependent upon the consent of a third state even in circumstances where a panel has found sufficient grounds requiring the release of a detainee. Authorities must minimize delays in releasing detainees,121 and no state may detain a person against a court order.122 The Court concluded that, on its face, Rule 54 (4) was inconsistent with Article 29 of the Constitution.123

Rule 158 (2) provided for the detention of a person who had been acquitted following a trial. Concluding that such detention ‘is not foreseen by law and does not fall under one of the permissible grounds for deprivation of liberty’, the Court held the rule as inconsistent with Article 29.124

5.1.5 Non liquet

The Court took an unusual route in declining to evaluate Rule 134 (3). Holding it was ‘not in a position to rule that this provision complies with Chapter II of the Constitution’,125 The Hague panel ignored the rich jurisprudence of the Constitutional Court in Prishtina. It also ran counter to what European constitutional courts would do in this case.

The situation is described in legal doctrine as non liquet (ie not clear) such that a tribunal is unable to rule on the matter. This, however, is not a standard practice in European constitutional justice.126 The reason is simple: when a court declares a situation non liquet, it effectively means that the aggrieved party has not received an answer; the issue remains pending. In this case, the aggrieved party is only the party that could potentially appear in future proceedings before the Special Court of Kosovo.127

5.2 July judgment on RoP

The Constitutional Court at The Hague maintained its special approach with the second judgment issued in June 2017. It effectively certified the RoP adopted and amended by the Special Court Plenary in accordance with the orders of the April Judgment. The constitutional judges also reviewed the new rules added to the RoP after the April ruling.128 To ensure independence and impartiality, members of the constitutional chamber do not participate in the rulemaking or amending process.129

In response to the April Judgment, the Plenary passed several amendments that ‘quite considerably’ restricted the investigative powers of the Specialist Prosecutor.130 For example, the amended rules significantly curtailed the categories of persons that may be subject to special investigative measures or seizures.

The Court underscored that the April Judgment did not seek to generally re-strict investigative capacities. Doing so could frustrate the prosecutor in the exercise of their statutory obligations. The Court’s findings were rather:

aimed at ensuring that where the exercise of prosecutorial investigative powers encroaches upon constitutionally guaranteed fundamental human rights and freedoms, such exercise is required to be subject to adequate safeguards, including, where necessary, judicial oversight and control. In this way, an appropriate balance is to be achieved between the competing public and private interests in issue.131

The June Judgment pertains to the following provisions of the RoP, which are now final and in force:

  1. Rule 19 (3) – Absence of a Judge;
  2. Rule 30 and Rule 31 – General Provisions and General Minimum Safeguards;
  3. Rule 32 and Rule 33 – Retention, Storage, Protection, Return and Destruction of Material Collected or Seized;
  4. Rule 34 – Conditions for Undertaking Special Investigative Measures;
  5. Rule 35 and Rule 36 – Special Investigative Measures Authorized by a Panel or Ordered by the Specialist Prosecutor;
  6. Rule 37 and Rule 38 – Search and Seizure Authorized by a Panel or Ordered by the Specialist Prosecutor;
  7. Rule 39 – Execution of Search and Seizure;
  8. Rule 41 – Collection of Bodily Material for Expert Examinations;
  9. Rule 57(4) – Review and Reconsideration of Detention on Remand;
  10. Rule 137 – General Provisions; and
  11. Rule 161 – Status of the Acquitted Person.

5.2.1 The right to fair trial

It is now clear that any hearing before the Special Court will be ‘a hearing before a tribunal established by law’, as required under Article 31.2 of the Constitution.132 In this regard, the Court found that Rule 19 (3), as amended by the Plenary, is not inconsistent with Chapter II of the Constitution.133

5.2.2 New provisions to protect fundamental rights

To ensure consistency with fundamental rights, the amended Rule 30 now contains Chapeau-type ‘General Provisions’ that apply to all investigations.134 Meanwhile, a new provision added to Rule 31 guarantees ‘General Minimum Safeguards’ for measures that may encroach on fundamental rights.135 Such measures may be authorized and conducted only if:

the applicable requirements pursuant to Rule 34 to Rule 41 are met;

the investigative measures are necessary for the investigation; and

the resulting interference with any concerned person’s right to personal integrity, privacy or property is proportionate to the legitimate aim of the investigation and does not negate the essence of the guaranteed right.136

In its own words, ‘[t]he Court welcomes the additional provisions contained in the Rules which are designed to secure enhanced protection of fundamental human rights.’137

The Plenary adopted ‘catch-all’ provisions to compensate for insufficient safeguards in several more rules.138

Rules 32 and 33 now apply ‘to all materials obtained as part of special investigative measures, searches and seizures, exhumations and post-mortem examinations and to the collection of bodily material.’139 The rules require that materials ‘be appropriately retained, stored and protected’,140 but do not delineate the steps to be followed in such cases.141 Instead, they provide that a panel of the Special Court should set out the procedures.142

The constitutional chamber acknowledged that the panel might need significant time and help from experts to develop procedures involving complex matters such as modern technology or DNA samples.143 Additionally, it noted the risk that each panel would devise its own rules, thereby undermining foreseeability, a criterion within the Article 55 quality-of-law requirement. Therefore, the Court suggests ‘specific regulatory guidelines’ to fill the RoP gaps on data retention.144 But on their face, rules 32 and 33 were not inconsistent with Chapter II.

5.2.3 Privacy – Special investigative measures

Rule 34 determines the offences that may warrant special measures (such as interception orders) and the categories of persons that may be subject to the measures.145 While fearing the categories list may be too narrow for effective investigations, the Court nevertheless found no inconsistency with the Constitution.146

Rule 35 imposes limits on the duration of special measures, such as covert surveillance or interception. The authorizing panel must also specify the duration. The panel may extend the initial measure only under special circumstances, and must supervise the execution and terminate the measure if certain conditions arise. Similarly, Rule 36 determines the circumstances in which the prosecution may order special investigative measures with subsequent judicial control. The Court found safeguards under rules 35 and 36 sufficient to pass constitutional scrutiny.

5.2.4 Privacy – Searches and seizures

The Court cleared Rule 37, emphasizing its heightened-necessity test, which the prosecution must meet to obtain a judicial authorization for search and seizure measures.147 Judges should apply the rule ‘in accordance with the law’, while striking a balance between constitutional rights and the needs of the prosecution.148 Furthermore, they may look to ECtHR case-law for guidance in meeting the ‘a reasonable expectation of privacy’ standard.149 The revised Rule 38 also satisfied the April concerns by emphasizing legality and proportionality in ex post facto review of searches and seizures.150

Next, the Court reviewed Rule 39 governing the execution of search and seizure.151 The revised provision applies to operations with and without prior judicial approval, and proscribes ‘the requisite degree of precision’ lacked in the original rules.152 The rule is clear about when and how the prosecutor may deviate from the ordinary procedure.153 It may also require the presence of counsel and an independent observer to preclude ‘abuse and arbitrariness’.154

The Court noted that Rule 39 does not regulate remote access to copy data from electronic devices.155 Such measures are often crucial to criminal investigations, yet may invade one’s privacy much more than traditional mechanisms do.156 While recognizing limited safeguards for technical measures in rules 35 and 36,157 the constitutional chamber advised the Plenary to expound on remote searches.158 Rule 39, nonetheless, passed the constitutional test in the June Judgment.159

5.2.5 Personal integrity

Finally, the constitutional panel noted that the revised Rule 41 had significantly narrowed the class of persons whose bodily samples could be obtained without their consent. The Court suggested the Plenary could expand the reach of the rule.160 The revision had nevertheless addressed the April concerns of insufficient safeguards, by requiring an assessment of circumstances for each case.161

5.2.6 The right to liberty and other provisions

With respect to the right to liberty, the Court ruled out constitutional inconsistency for rule 57 (4), which governs the release of a person within a third state.162 Next, it cleared Rule 137 (previously Rule 134), noting that the Plenary had removed the troubling non-liquet provision that was left unresolved in the April Judgment.163

Rule 161 (previously 158) now provides that acquitted persons will be immediately released, unless they are lawfully detained or serving a sentence for other crimes. Therefore, the Court found the revised rule was not inconsistent with Chapter II.164

5.3 February order in Hasani

Shortly after the prosecution began interviewing former members of the KLA, the Constitutional Court received its first individual referral – that is, from a party involved in a proceeding.

On 20 December 2018, the Specialist Prosecutor’s Office served Mahir Hasani with an order to part-take in questioning and to produce documents and information,165 under penalty of ‘contempt’.166 The prosecution also stated they had ‘reasons to believe [he had] been involved in the commission of a crime’,167 but did not elaborate on the suspicions.168 Hasani challenged the prosecution’s order before the constitutional chamber, invoking his right against self-incrimination and the presumption of innocence under articles 30 (6) and 31.5 of the Constitution and Article 6 of the European Convention on Human Rights.169

The Constitutional Court issued the Order on the Request of Mahir Hasani for Interim Measure on 7 February 2019, merely days before the scheduled interview at the prosecutor’s office.170 While short of a final decision, the Court ordered a stay of execution finding ‘a real risk of serious harm’, a standard proscribed by the RoP and interpreted in line with the ECtHR test of ‘flagrant denial of justice’.171 Here, the chamber concluded that the risk to the petitioner cut in three ways, with the defence being harmed from the outset, the prosecution gaining an unfair advantage in the proceedings, and the petitioner facing conviction for contempt.172

The Court further stated:

Whilst the Chamber considers that the Specialist Prosecutor’s submission that the Applicant will be informed of his rights to silence and to not incriminate himself, carries some weight, it, nevertheless, at this point in time, finds it difficult to reconcile that submission with the terms of the ‘Order’ which obligates the Applicant to provide all specified documents and information when he appears for questioning on 11 February 2019.173

The Court noted that the interim measure was meant to ‘ensure that the status quo is maintained pending [a final] determination.’174 But the prosecutor eventually withdrew the December order, leading the constitutional chamber to dismiss Hasani’s referral.175 A tactical move, the withdrawal precluded a judgment on the merits, which would have become binding precedent for the Special Court.

5.4 ‘Suspect witness’ and concerns of constitutional violations

A former KLA commander sparked wide debate among jurists with a brief public statement that followed his 16-hour-long interview with the Specialist Prosecutor’s Office at The Hague. Asked by reporters about his status in the proceedings, the commander said he’d been summoned to The Hague ‘as a suspect witness’ (dëshmitar i dyshuar).176 The term does not appear in any of the acts that apply to the Special Court, including the RoP and the Code of Criminal Procedure.177

While the particular commander’s status may have been clarified later on, his imprecise statement was not entirely irrelevant. Many of the persons did not know in what capacity they were invited to The Hague: as witnesses or as suspects.178 On face value, the prosecutor’s orders not specifying an invitee’s status may raise constitutional issues regarding the right to a fair trial.179 It remains to be seen if and how the constitutional chamber will handle potential complaints.

6 Conclusion

This paper discussed the transfer of sovereignty in a comparative perspective with special reference to Kosovo and its transfer of judicial and other powers to an internationalized institution funded by the European Union. Known colloquially as the Special Court, the institution nevertheless operates under Kosovo laws. It includes a prosecutor’s office, specialist chambers in each instance of the regular judiciary, a chamber of the Constitutional Court, and an ombudsperson. The Special Court has its seat at The Hague, and is entirely independent in terms of finances, organization, administration, and staff from the Kosovo authorities in Prishtina. The Special Court will investigate and try crimes allegedly committed during and immediately after the 1998–1999 war with Serbia.

This is not a new setup for Kosovo or the world. A myriad of hybrid and international courts has functioned around the globe. But there are unique aspects to Kosovo’s current case.

First and foremost, the Special Court was founded because Kosovo failed to break with the culture of impunity in matters of war crimes and crimes against humanity and international law. In this aspect, Kosovo authorities share their responsibility with the international bodies that ran the justice system for over a decade – the UN administration (UNMIK), from the end of the war in 1999 to the 2008 Declaration of Independence, and the EU Rule of Law Mission (EULEX), from 2008 through the end of supervised independence in 2012. In the formal sense, EULEX was active until 2018, when it relinquished all its powers onto the Kosovo authorities. UNMIK and EULEX had a full mandate to prosecute and try the above-noted crimes and crimes related to corruption and organized crimes. They did too little, based on the general perception of the local population, which expected great success especially when EULEX first began its work.

The second reason for the Special Court is Kosovo’s commitment to pursue the Western path to state-building. This includes EU integration. It was a planned policy of Kosovo authorities to commit themselves to the rule of law, democracy, and respect for human and minority rights. The history of this commitment goes back to the 2008 Declaration of Independence and its implementation via the Ahtisaari Plan for Kosovo’s final status and the 2008 Constitution.

Finally, the Special Court is a direct endeavour of the Republic of Kosovo to implement a resolution of the Parliamentary Assembly of the Council of Europe, which endorsed a report by Swiss Senator Dick Marty of findings on alleged wartime crimes. The resolution brought about a constitutional amendment, the adoption of a law regulating the organization and functioning of the Special Court, and the undertaking of other measures to make the institution operational.

The Special Court is now up and running at The Hague. It has not, however, tried a criminal case since its founding three years ago. The constitutional chamber has issued two judgments ensuring beforehand that the Court’s rules of procedure would respect the highest standards of human rights. Another constitutional case raised concerns about the right to a fair trial, but was dismissed as the prosecutor withdrew the disputed measure.

It remains to be seen whether the Special Court will put an end to the culture of impunity for the sensitive crimes described in this article.

Footnotes

1

Jean Bodin, De la république (Chez Jacque du Puys 1576) Livre I, chapitre IX, lines 1–2, 125 (‘Sovereignty is the absolute and perpetual power of a republic […]’).

2

See Claudia Orange, Treaty of Waitangi (Allen & Unwin 1987).

3

Norman Dwight Harris, ‘The New Moroccan Protectorate’ (1913) 7 Am L Rev 245, 260.

4

Treaty of Versailles (1919) arts 49, 99, 102; Meir Ydit, Internationalised Territories from the ‘Free City of Cracow’ to the ‘Free City of Berlin’: A Study in the Historical Development of a Modern Notion in International Law and International Relations, 1815–1960 (AW Sythoff 1961).

5

General Framework Agreement for Peace in Bosnia and Herzegovina [Dayton Accords] (1995); see also Noel Malcolm, Bosnia: A Short History (New York UP 1996) 267–71.

6

Louis Favoreu and Wanda Mastor, Les cours constitutionelles (Dalloz 2016) 12.

7

See eg Emily Hay, ‘International(ized) Constitutions and Peacebuilding’ (2014) 27 Leiden J Int’l L 141; Enver Hasani, Self-determination, Territorial Integrity and International Stability: The Case of Yugoslavia (National Defense Academy: Vienna 2003).

8

See generally Noel Malcolm, Kosovo: A Short History (HarperPerennial 1999); Tim Judah, Kosovo: What Everyone Needs to Know (Oxford UP 2008); Julie A Mertus, Kosovo: How Myths and Truths Started a War (U California Press 1999); see also Getoar Mjeku, ‘Unredeemed Lands and Extraterritorial Jurisdiction: The Case of Serbia and Kosovo’, working paper, 13 December 2013, available at SSRN.

9

Ustav SRFJ (1974) [Const Yugoslavia] art 1.

10

Johnathan S Haub, ‘Justice in Kosovo: Seeking A Return to Law and Order’ Oregon State Bar Bulletin (February/March 2003) 33; Malcolm (n 8) 346.

11

See generally Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (U Chicago Press 2005) 16–35.

12

[Assembly Act] 010-22/90, 2 July 1990, published in Gazeta Zyrtare e KSA Kosovës/Službeni list SAP Kosova [Official Gazette of SAP Kosovo] 21/1990 (3 July 1990).

13

See Judah (n 8) 64–74.

14

Colin Warbrick, ‘Recognition of States’ (1992) 41 Int’l & Comp LQ 473, 478, note 29, and 490; Dahlia Scheindlin, ‘Phantom Referendums in Phantom States: Meaningless Farce or a Bridge to Reality?’ (2012) 18 Nationalism & Ethnic Politics 65, at 73–74; Peter Radan, ‘Secessionist Referenda in International and Domestic Law, Nationalism and Ethnic Politics’ (2012) 18 Nationalism & Ethnic Politics 8, 12.

15

Alain Pellet, ‘The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples’ (1992) 3 Eur J Int’l L 178; Malcolm (n 8) Preface.

16

Malcolm (n 8) 355.

17

Malcolm (n 8) Preface.

18

Interim Agreement for Peace and Self-Government in Kosovo [Rambouillet Accords], France, 23 February 1999, Framework art I (Principles) and chap 1 (Constitution).

19

Marc Weller, ‘The Rambouillet Conference on Kosovo’ (1999) 7 Int’l Affairs 211, 227–238; Dimitar Bechev, Rival Power: Russia’s Influence in South East Europe (Yale UP 2017) 40–48; Judah (n 8) 75–92.

20

Ruth Wedgwood, ‘NATO’s Campaign in Yugoslavia’ (1999) 93 Am J Int’l L 828; Military Technical Agreement between Int’l Security Force and Gov’t of FRY and Serbia, 9 June 1999.

21

S/RES/1244.

22

Used in the Rambouillet Accords and Resolution 1244, the term ‘substantial autonomy’ reappeared in the 2006 constitution of Serbia, which defines Kosovo as an autonomous province. Preamble, art 182.1. This reflects Serbia’s rigid belief that international law would guarantee its territorial integrity in spite of the grave human-rights violations under the Milošević regime.

23

Craig S. Smith, ‘Serbia Rejects Plan That Could Lead to Kosovo Independence’ New York Times (3 February 2007).

24

Crispian Balmer, ‘Russia blocks G8 moves on Kosovo independence’ Reuters (8 June 2007).

25

Ahtisaari Plan, annexes IX–X; see also Oisín Tansey, ‘Kosovo: Independence and Tutelage’ (2009) 20 J Democracy 153, 159–60, 165.

26

Ahtisaari Plan, annex IX art 4.1.

27

Assembly Decision 04-V-436, 7 September 2012, OGK 25/2012.

28

UNGA Res 63/3/2008.

29

Paras 49–56.

30

Advisory Opinion on Kosovo, ICJ Reports 2010, 403.

31

For a skeptic take on Kosovo’s statehood, see Colin Warbrick, ‘Kosovo: Declaration of Independence’ (2008) 57 Int’l & Comp LQ 675–90.

32

See Opinion, paras 101–121.

33

For more, see Schmitt (n 11) 16–35; Slobodan Samardžić (ed), Norma i odluka: Karl Šmit i njegovi kritičari (Filip Višnjić 2001) 85–124.

34

Carl Schmitt, Constitutional Theory (Duke UP 2008) 75–82.

35

See Hans Kelsen, Pure Theory of Law (Lawbook Exchange 2002, 2009) 193–94, 198–205.

36

See Dren Doli and Fisnik Korenica, ‘What about Kosovo’s Constitution: Is there anything special? Discussing the grundnorm, the sovereignty, and the consociational model of democracy’ (2011) 5 ICL Journal 49, 54–55, 69.

37

ibid, dispute the Plan’s supremacy.

38

Louis Aucoin, ‘Views from the Field on Constitution Writing: The Case of Kosovo (Interview)’ (2008) 23 Praxis: Fletcher J Hmn Sec 123, 124.

39

Hay (n 7) 144–45.

40

Art 113.

41

Ahtisaari Plan, annex VII art 6.1.

42

Case KI 02/09 Kolë Krasniqi, KCC, Resolution on Inadmissibility, 26 January 2010; Ahtisaari Plan, annex VI art 6.1.

43

Case KI 14/09 Loxha, KCC, Resolution on Inadmissibility, 15 October 2010.

44

ibid paras 28–33.

45

Case RK 21/07, Supreme Ct, Decision, 17 December 2008.

46

Case KI 25/10 Privatization Agency, Constitutional Review of Decision of Supreme Ct, Judgment, 31 March 2011, paras 34–35, 41, 54–63, 65, 67.

47

Case KO 38/12, Regarding constitutional amendment ending supervised independence, Judgment, 15 May 2012, paras 15–16, 50–55, 80–93, and disposition at I–II.

48

See Assembly Decision 04-V-436, 7 September 2012, OGK 25/2012.

49

Cases KO 45/12 and KO 46/12, Constitutional Review of Laws, Judgment, 25 June 2012, paras 6–8, 19–20, 22, 28, 32, 34–41, 43–47, 49–55, 58, 65–66.

50

Case KO 120/16, Resolution on Inadmissibility, 1 February 2017, paras 4–7, 42–43, 50–52, 68, 72–77, 124–29.

51

See Council Joint Action 2008/124/CFSP, on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO, OJ L 42/92 <https://bit.ly/2C3KY6a>, accessed 14 October 2019, last amended by Council Decision 2018/856/CFSP, OJ L 146/5 <https://bit.ly/2TCphV3> accessed 14 October 2019; laws ratifying Kosovo–EU agreements on EULEX: Law 04/L-148, OGK 25/2012 <https://bit.ly/2PuM7bC> accessed 14 October 2019; Law 04/L-274, OGK 32/2014 <https://bit.ly/2PuMxyI> accessed 14 October 2019; Law 05/L-102, OGK 21/2016 <https://bit.ly/2EgAT9q> accessed 14 October 2019.

52

Carla Del Ponte and Chuck Sudetic, La caccia: Io e i criminali di guerra [The Hunt: Me and the War Criminals] (Feltrinelli 2008) and Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity (Other Press 2009); Judah (n 8) 92.

53

For more on what followed Del Ponte’s allegations, see Sarah Williams, ‘The Specialist Chambers of Kosovo: The Limits of Internationalization? (2016) 14 J Int’l Crim Justice 25, 25–26, 37; Matthew E Cross, ‘Equipping the Specialist Chambers of Kosovo to Try Transnational Crimes: Remarks on Independence and Cooperation’ (2016) 14 J Int’l Crim Justice 73, 76–81.

54

PACE Doc 11574 (2008).

55

PACE Doc 12462 (2011), Inhuman treatment of people and illicit trafficking in human organs in Kosovo [Marty Report] <https://bit.ly/2rwwd6f> accessed 14 October 2019.

56

ibid.

57

Kosovo–EU Stabilisation and Association Agreement, 2015, art 6; see also Williams (n 53) 48; Cross (n 53) 74.

58

Law 04/L-148, OGK 25/2012, p 4 (attached letter).

59

Quoted in Cross (n 53) 80, n 37.

60

Law 04/L-274, OGK 32/2014, p 5 (attached letter).

61

Amend 24, Assembly Decision 05-V-139, 3 August 2015, OGK 20/2015 <https://bit.ly/2ITBfSm> accessed 14 October 2019; see also Review of Constitutional Amendment, case KO 26/15, KCC, Judgment, 15 April 2015 <https://bit.ly/2Ehno9z> accessed 14 October 2019.

62

Fisnik Korenica et al, ‘The EU-integrated hybrid and international specialist court in Kosovo: How ‘special’ is it?’ (2016) 12 Eur Const L Rev 474, 479; see also Emanuele Cimiotta, ‘The Specialist Chambers and the Specialist Prosecutor’s Office in Kosovo: The “Regionalization” of International Criminal Justice in Context’ (2016) 14 J Int’l Crim Justice 53, 55–57.

63

Cimiotta (n 62) 69–71.

64

Cross (n 53) 98–99 (emphasis added).

65

See Cross (n 53) 81; Furtuna Sheremeti, ‘Understanding Kosovo’s “special court”’ Kosovo 2.0 (6 March 2017) <http://bit.ly/2XWwPku> accessed 14 October 2019 (discussing funding).

66

Cimiotta (n 62) 69–71.

67

Williams (n 53) 26–27; see also Cross (n 53) 86 (agreeing with Williams).

68

Williams (n 53) 32, 34–35.

69

Hay (n 7) 147.

70

Cross (n 53) 86.

71

Paras 4–9.

72

Paras 10, 12.

73

Paras 13, 14.

74

OGK 27/2015.

75

For the criminal-law jurisdiction, organization, and work of the Special Court see Williams (n 53); Cimiotta (n 62); Cross (n 53); Lachezar Yanev, ‘Co-Perpetration Responsibility in the Kosovo Specialist chambers: Staying on the Beaten Path?’ (2016) 14 J Int’l Crim Justice 101; Gabriella Citroni, ‘The Specialist Chambers of Kosovo: The Applicable Law and the Special Challenges Related to the Crime of Enforced Disappearance’ (2016) 14 J Int’l Crim Justice 123; Korenica et al (n 62).

76

See Cross (n 53) 84.

77

Law 05/L-053 art 3 (4).

78

Law 03/L-121, on the Constitutional Court of the Republic of Kosovo, OGK 46/2009, amended by Law 04/L-115, on amending and supplementing the laws related to the ending of international supervision of independence of Kosovo, OGK 25/2012, art 2.

79

Law 05/L-053 art 49 (2).

80

Article 135.4 states: ‘The Ombudsperson may refer matters to the Constitutional Court in accordance with the provisions of this Constitution.’

81

As if to complicate matters, the Albanian-language version uses different terms for the same institution: Avokati i Popullit appears in Chapter XII and the rest of the text, while Amendment 24 (current Article 162) employs Ombudspersoni i Kosovës.

82

Art 162.11; Law 05/L-053 art 34.9 (‘The Law on the Ombudsman, Law No 03/L-195, shall not apply to the work of the Specialist Chambers and the Specialist Prosecutor’s Office’).

83

Law 05/L-053 art 49.5; Const art 113.2.

84

Rules of Procedure and Evidence before the Kosovo Specialist Chambers including Rules of Procedure for the Specialist Chamber of the Constitutional Court, 25 August 2017 (hereinafter ‘RoP’).

85

See generally Lekë Batalli, ‘Parallel Justice: A First Test for Kosovo’s Specialist Chambers and Specialist Prosecutor’s Office’ Verfassungsblog.de (4 March 2019) <https://bit.ly/2Siqvjk> accessed 14 October 2019.

86

See eg Die Morina, ‘Hague Prosecution, “Calls Kosovo Ex-Commander for Interview”’ Balkan Insight (7 December 2018) <https://bit.ly/2TrXoyx> accessed 14 October 2019.

87

The rulings of the constitutional chamber and other public documents of the Special Court may be accessed here: <https://repository.scp-ks.org/> accessed 14 October 2019.

88

Cases KSC-CC-2017-02, Decision, 12 April 2017, and KSC-CC-2018-04, Decision, 16 March 2018.

89

Art 19.5; see cases KSC-CC-PR-2017-01, Referral, 27 March 2017, and KSC-CC-PR-2017-03, Referral, 31 May 2017.

90

Case KSC-CC-PR-2017-01.

91

Case KSC-CC-PR-2017-03, Judgment, 28 June 2017, and Corrigendum, 24 July 2017.

92

See generally Furtuna Sheremeti, ‘Unconstitutional Rules at the Specialist Chambers’ Kosovo 2.0 (8 May 2017) <https://bit.ly/2Wbzsgz>.

93

Case KSC-CC-2019-05 Hasani, Order on Request of Mahir Hasani for Interim Measure, 7 February 2019.

94

Case KSC-CC-PR-2017-01, Judgment, paras 12–18.

95

ibid para 12.

96

ibid para 13.

97

ibid para 14.

98

ibid para 16.

99

ibid.

100

ibid paras 36–40 (citing Pandjikidzé and Others v Georgia App no 30323/02 (ECtHR, 27 October 2009) para 104; Posokhov v Russia App no 63486/00 (2003) ECHR IV, para 39; Buscarini v Saint-Marin (decision) App no 31657/96 (ECtHR, 4 May 2000).

101

ibid paras 59–75.

102

ibid para 75.

103

Const art 55.1.

104

Const art 55.2.

105

Case KSC-CC-PR-2017-01, Judgment, paras 62–63, 66 (citing Roman Zakharov v Russia [GC] App no 47143/06 (ECtHR, 4 December 2015) paras 228, 231; Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010) paras 60–61, 63).

106

ibid paras 67–75; see particularly para 69 (citing Kennedy v United Kingdom App no 26839/05 [ECtHR, 18 May 2010] para 159; Roman Zakharov v Russia [n 105] para 244; Iordachi and Others v Moldova App no 25198/02 [ECtHR, 10 February 2009] paras 43–44).

107

ibid paras 76–106; see also Corrigendum (n 91, affecting para 101).

108

ibid para 76.

109

ibid para 84 (citing Camenzind v Switzerland (1997) EHRR VIII, para 45).

110

ibid para 86.

111

ibid para 87 (citing Rozhkov v Russia (no 2) App no 38898/04 (ECtHR, 31 January 2017) para 122).

112

ibid paras 76–88.

113

ibid paras 89–95.

114

ibid paras 96–106.

115

ibid para 99 (Schmidt v Germany (decision) App no 32352/02 (ECtHR, 5 January 2006).

116

ibid para 102.

117

ibid para 106.

118

ibid paras 105–106 (citing S and Marper v United Kingdom [GC] App nos 30562/04 and 30566/04 (ECtHR, 4 December 2008), paras 120, 122).

119

ibid paras 96–106.

120

ibid paras 118–122.

121

ibid para 119 (Giulia Manzoni v Italy (1997) EHRR IV, para 25; Quinn v France (1995) Series A no 311, paras 39–43).

122

ibid para 120 (citing Assanidze v Georgia [GC] App no 71503/01, ECHR 2004-II, para 173).

123

ibid para 122.

124

ibid para 205; see also paras 194–204.

125

ibid para 193.

126

See Siniša Rodin, ‘Judicial review and separation of powers in Croatia in light of the German experience’ (1997) 4 J Const L in E & Ctr Eur 75, 94.

127

Law 05/L-053 art 19.3.

128

Case KSC-CC-PR-2017-03, Judgment, para 13 et seq.

129

Law 05/L-053 art 19, paras 1 and 5.

130

Case KSC-CC-PR-2017-03, Judgment, para 19.

131

ibid para 20.

132

ibid para 27.

133

ibid para 28.

134

ibid para 31.

135

ibid para 32.

136

RoP 31 (1).

137

ibid para 33.

138

ibid para 41.

139

ibid.

140

RoP 32 (1).

141

Case KSC-CC-PR-2017-03, Judgment, para 44.

142

RoP 32 (1); case KSC-CC-PR-2017-03, Judgment, para 44.

143

Case KSC-CC-PR-2017-03, Judgment, para 45.

144

ibid para 46.

145

ibid para 53.

146

ibid para 54.

147

ibid paras 62–67.

148

ibid para 67 (citing Murray v United Kingdom (1994) Series A no 300-A, para 91; Klass and Others v Germany (1978) Series A no 28, para 59).

149

ibid para 69 (citing Gillan and Quinton v United Kingdom App no 4158/05 (ECtHR, 12 January 2010) para 61; Uzun v Germany [n 105] para 44).

150

ibid paras 71–77.

151

ibid paras 78–89.

152

ibid para 79.

153

ibid para 80.

154

ibid para 81 (citing Lindstrand Partners Advokatbyrå AB v Sweden App no 18700/09 [ECtHR, 20 December 2016] para 95).

155

ibid para 83.

156

ibid paras 83–84.

157

ibid para 85.

158

ibid paras 86–87.

159

ibid para 89.

160

ibid para 91.

161

ibid para 92.

162

ibid paras 94–96.

163

ibid para 97.

164

ibid para 99.

165

Case KSC-CC-2019-05, Order 7 February 2019, para 9.

166

ibid para 10.

167

ibid para 11.

168

ibid para 13.

169

ibid paras 2, 9, 14. The Convention applies directly to Kosovo. Const art 22.

170

ibid para 9.

171

ibid paras 21, 24 (citing Soering v United Kingdom (1989) Series A no 161; Othman (Abu Qatada) v United Kingdom App no 8139/09 (2012) ECHR; Ismoilov and Others v Russia App no 2947/06 (ECtHR, 24 April 2008).

172

ibid paras 21, 25.

173

ibid para 24.

174

ibid para 29.

175

Case KSC-CC-2019-05, Decision, 20 February 2019, paras 56–58.

176

Arta Avdiu, ‘Nuk ka term “dëshmitar i dyshuar” në Kodin e Procedurës Penale, ashtu siç thotë Remi’ Koha.net (15 January 2019) <https://bit.ly/2Vsaids> accessed 14 October 2019.

177

See RoP 30; Code 04/L-123, Criminal Procedure Code, OGK 37/2012 (amended by Law 04/L-273, OGK 32/2014, and Law 06/L-054, OGK 22/2018) art 19.

178

Gazeta Blic, ‘Avokati i Nazif Mehmetit: Nuk e di nëse nga Gjykata Speciale ka ftuar atë si dëshmitar apo si të dyshuar’ (January 2019) <https://bit.ly/2SJFGCA> accessed 14 October 2019.

179

See Const art 31; Code 04/L-123 arts 124–125.

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