09 Oct 14
Ombudsman says head of state violated the constitution by extending the terms of international judges without going to parliament.

By Valerie Hopkins and Jeta Xharra
BIRN
Pristina

When President Atifete Jahjaga issued a decree on August 31, “confirming the extension” of the mandates of three international judges on the Constitutional Court of Kosovo, she seemed to avert a serious institutional crisis at a time when Kosovo already faced a political crisis over the formation of a new government.

Since the court has issued two important rulings during the summer about the political crisis – concerning nominations of the posts of Prime Minister and Speaker of Parliament – there were concerns that an even greater crisis now loomed. Without its three international members, the court would not have a quorum.

It left a troubling question: If the party leaders went again to the court, what would happen if no court were there to issue a ruling?

In averting one crisis, Jahjaga potentially created another, however, and on Thursday, Kosovo’s Ombudsperson, Sami Kurteshi, filed a challenge with the Constitutional Court, arguing that the President has violated the constitution by extending the judges’ mandates.

While the President’s action contradicts the constitution, which says the judges must be proposed first by the Assembly and only then appointed by the President, the President’s office and EU officials argue that Kosovo’s treaty with the European Union allows for a different procedure in this case.

In her decree, Jahjaga reasoned that her action was in line with an “exchange of letters” with the EU foreign policy chief, Catherine Ashton, from April 2014, which outlined how the EU’s rule of law mission, EULEX, and the Special Investigative Task Force, which is probing war crimes, should operate in Kosovo.

The Assembly later adopted these letters as law in May, forming the legal basis for the EU’s presence in Kosovo.

Her office considers this exchange of letters an international agreement, though this is disputable, as international agreements must be between two parties that recognize one another, and the EU does not recognize Kosovo as a state.

Neither the constitution of Kosovo, nor the exchange of letters, gives anyone a right to “extend” the mandate of the international Constitutional Court judges, however.

To add to the confusion, it is unclear how long the judges’ mandates have been extended for.

An internal EU memo, dated August 20, obtained by BIRN, reveals that the President’s office had doubts about the process of extending the judges’ mandates in the absence of parliament.

The memo noted that the President’s legal team “insisted” that the appointments go through parliament, bringing the process in line with Article 114 of the constitution. The memo also stated that the advisors insisted that the judges take the same oath as their Kosovo counterparts.

EULEX officials apparently persuaded Jahjaga’s office that parliament was not needed.

“After a long discussion with the President’s office, they agreed that judges should not take the oath, and there is no need for the Assembly,” the internal EULEX document from August stated.

Ombudsperson Kurteshi maintains that this failure to consult the Assembly was unconstitutional.

“The constitution does not and cannot allow anyone, including the President, to bypass the elected representatives of the people in naming judges to the highest court,” he told BIRN.

Article 20 of the constitution allows Kosovo to surrender some of its sovereignty. However, the fact that this mechanism says nothing about extending the mandates of judges concerns the Ombudsman.

Other analysts are also concerned. Fisnik Korenica, director of the Center for Legal and Political Studies, a think tank, said that while the President did not break the law by making the reappointments, they were problematic: “I think it was legal but not legitimate. You may not have legitimacy before going before parliament.”

Gjyljeta Mushkolaj, a law professor at the University of Prishtina and former Constitutional Court judge, also said that while the extension of the judges’ terms was legal, the judges themselves should swear an oath to the Republic.

“The judges must swear an oath,” Mushkolaj said. “We need another confirmation that they are acting independently, as judges of the Republic of Kosovo.”

While the Ombudsman’s case raises procedural questions about the shortcuts that the President took on the advice of the EU in the interest of democracy, Samuel Zbogar, the head of the EU office in Kosovo, defends the EU’s role.

“We didn’t pressure anyone,” he said. “We didn’t violate anything. We just followed our interpretation and understanding of the exchange of letters, ratified in parliament, and we followed that procedure.”

The April letters, which are being cited as justification for the extension of the mandates, are, however, vaguely worded compared to letters used in the past regulating international appointments.

The argument is that President, in effectively allowing EULEX to nominate and appoint judges, conceded more sovereignty than the exchange of letters transferred.

The President’s office knows these laws well. In 2012, the President wrote to Ashton concerning the delegation of authority to EULEX.

“As President, it is my duty to ensure that any such delegations are clearly enumerated,” she wrote.

The 2012 letter referred to the competency delegated to EULEX to both “nominate and appoint” judges and prosecutors, which was not done in the 2014 exchange, which granted EULEX only the ability to “appoint.”

“The Constitution does not allow the President to extend the mandate of the three international judges without the Assembly’s proposal and nothing in the agreement, properly understood, changes this,” a legal adviser to the Ombudsman told BIRN.

The Ombudsman’s case may meanwhile destabilize the court because the three judges may have to “recuse” – excuse themselves – from the case, as it clearly affects their own employment.

Furthermore, the EU memo notes that Constitutional Court President Enver Hasani was “informally consulted,” about the process and “said there is no need to involve the Assembly”. Thus, if the court hears the case, he may also have to recuse himself.

“Hasani is a friend and I have the greatest respect for him as an academic and a jurist. That is why I would expect him to voluntarily recuse himself from the case, if it turns out that he was involved in his colleagues’ reappointment, but I cannot prejudge the issue,” Kurteshi said.

The Ombudsman maintains that the case has nothing to do with the question of whether international judges should sit on the court; it concerns only the process of appointment.

“This case is about one question only: did the President respect the constitutionally mandated procedure for the selection of Constitutional Court judges in confirming the extension of the three international judges’ mandate?” he asked. “And the answer is ‘No’.”