27 Oct 14
Ombudsperson’s case against judges’ reappointments to the Constitutional Court could disable the court and result in the President’s impeachment.

Pristina Kosovo Constitutional Court has yet to decide whether it will hear a legal challenge questioning the legitimacy of the three international judges serving on it - and the President’s decree that confirmed their re-appointment.

If the court agrees to hear the case filed on October 9 by Ombudsman Sami Kurteshi, it could render itself dysfunctional. It could also result in the impeachment of the President, which is why analysts doubt the court will hear the case.

“This is a case with potentially serious consequences,” Fisnik Korenica, director of the Group for Legal and Political Studies, said.  “If the court finds a serious violation of the constitution has occurred, it could be grounds for the dismissal of the President.”

The dispute centres on the events of September 1, when President Atifete Jahjaga issued a decree confirming the continuation of the mandate of judges Robert Carolan, Snezhana Botusharova-Doicheva and Almiro Rodrigues.

All three originally were appointees of the International Civilian Office, the body that oversaw Kosovo’s transition from UN Administration to independence and is now defunct.

An internal memo of the EU rule-of-law body, EULEX, which Balkan Insight obtained, revealed that the President’s office had wanted parliament to nominate the three judges.

The office also wanted them to swear an oath on their re-appointment. However, EULEX convinced the President’s advisers that this was not necessary.

A ruling saying that the President violated the constitution by continuing the judges’ mandates by decree would destabilize the court because the three judges would then have to step aside.

The court would then no longer have the quorum of seven it needs to make any decisions. Eight judges currently sit on the court (the ninth seat is vacant), one of whom must recuse himself from hearing any political cases.

“No constitutional court in the world would follow a line [of logic] that would put itself out of action,” Korenica said, which is why he believes the court will declare the case inadmissible.

“The Constitutional Court is a highly politicized institution. It is not there to interpret the Constitutional justly, but to serve as a political scale, to maintain balance and so-called political stability,” another political analyst, Shpend Kursani, said. “I do not believe … that the Court will act fairly on the Ombudsperson’s case,” he added.

The European Union and the President’s office maintain that the decree continuing the judges in office was in line with an April “exchange of letters” between President Jahjaga and EU foreign policy chief, Catherine Ashton, which the Kosovo Assembly ratified.

However, Ombudsman Kurteshi argues that articles 65, 84 and 114 of Kosovo’s constitution say that parliament must nominate all appointees to the Constitutional Court. Only then can the President confirm them.

His interpretation, which matches the President’s own initial interpretation, prior to her discussions with EULEX, is that the exchange of letters with Ashton did not alter that requirement.

In his submission, the Ombudsman requested “interim measures,” or an immediate decision by the court suspending the three international judges.

Although court rules say such requests should be given priority over all other matters, the court has yet to respond.

The three international judges will also likely weigh in on any decision concerning interim measures.

The court told Balkan Insight it would not discuss any deadlines for a decision on interim measures.

The legal tussle is another headache for President Jahjaga as she continues her efforts to break the four-month political deadlock that has followed since the last elections.

Now a challenge to her own legitimacy hangs over her.

The court has 30 days from the day it receives all the paperwork from the Ombudsman to decide whether the case is admissible. The President then has 45 days to issue a response to the challenge.

“They have her [fate] in their hands,” Korenica concluded.