Hasani: The Constitutional Court can make corrections, but it will not annul the draft statute of the CSM

Enver Hasani
Source: Kosovo Online

Former President of the Constitutional Court of Kosovo and Professor of International Law Enver Hasani said that the Constitutional Court of Kosovo can make some corrections to the draft statute of the Community of Serb Municipalities when the Kosovo government submits the draft for review to this judicial body, but he does not believe that it will annul the entire draft. In an interview for Kosovo Online, Hasani pointed out that the Community is an obligation of Kosovo, which will be fulfilled after Kosovo becomes a member of the Council of Europe, as Kosovo leaders Vjosa Osmani, Albin Kurti, and Glauk Konjufca have committed.

"I am sure that the Constitutional Court will make some corrections, but I seriously doubt that it will annul the draft statute of the Community. We also have the ruling of the Constitutional Court from 2015 which confirms that this entity should be formed," said Hasani.

Kosovo has received a recommendation from the Parliamentary Assembly of the Council of Europe for membership in this international institution. Was this decision expected?

Yes, more or less, there was the report of Mrs. Bakoyannis and the guidelines and recommendations of eminent legal experts of the Council of Europe, and nothing has changed in those reports and recommendations. Not only for me, this was expected here in Kosovo.

The formation of the CSM was one of the conditions for Kosovo's membership in the Council of Europe. Could the fact that the CSM has not been formed change the course of voting in the Committee of Ministers on May 16 and bring a negative result for Kosovo?

It could happen if the Kosovo side shows goodwill. The Community is not part of the report. Mrs. Bakoyannis clearly stated that the formation of the Community of Serb Municipalities is not in principle a condition, such conditions were not set for other countries, so they will not be for Kosovo either. But, that is something that will happen after the voting of the Committee of Ministers of the Council of Europe because Kosovo has unilaterally taken on this obligation signed by Kurti, Osmani, and Konjufca. Legally, the Community is an obligation of Kosovo that will be executed after Kosovo's membership in the Council of Europe. This could happen earlier, but again, it is the political will of Kosovo.

Media reported that Kosovo will submit the draft statute of the Community to the Constitutional Court on May 10? If this happens, what do you think we can expect to happen?

Although it is not a condition, it can happen. As soon as the draft goes to the Constitutional Court, that obligation is completed. I am sure that the Constitutional Court will make some corrections, but I seriously doubt that it will annul the draft statute of the Community, we also have the ruling of the Constitutional Court from 2015 which confirms that this entity should be formed. However, there are some external provisions, which the court may correct. But to annul the entire draft statute, I seriously doubt.

The anniversary of the Brussels Agreement is April 19. What were the obligations, what has been fulfilled so far? What issues remain open?

From the Serbian side, it is the issue of missing persons, and there is a more defensive stance of the Serbian side regarding the representation of Kosovo in international relations. From the Kosovo side, it is the obligation to form the Community of Serb Municipalities. These are the most contentious issues that are open. There are also many other issues related to license plates, electricity, the Serbian currency, and the Central Bank of Kosovo, etc... It's effectively about implementing the draft statute of the Community, which was created by the European Community.

Serbian lawyers in Kosovo have filed an appeal to the Constitutional Court on the decision of the CBK to ban the dinar. Does this appeal have a basis, is the Constitutional Court the place where this issue should be resolved?

They are not an authorized party, because this is not an individual dispute, so procedurally this will be dismissed as inadmissible, due to the lack of active legitimacy of the parties. I am quite sure that, if it went through for example a public legal defender or through some constitutionally authorized body, the court would have serious objections to that regulation of the Central Bank of Kosovo.

On Sunday, there will be a vote for or against the dismissal of mayors of municipalities in the north of Kosovo. Is the Administrative Instruction of the Ministry of Local Self-Government a legitimate way to dismiss mayors, and is there a simpler way to resolve this issue?

No, I said at the time to the media that it is not legitimate. A decree cannot replace a law. This regulation does not have a legal or constitutional basis, but it was done as it was done, and here Kosovo has brought itself into an awkward situation, instead of simplifying it in another way, for example through resignation, or some amendments or changes to the law so that authorized constitutional bodies organize the whole process. A decree cannot order the Central Election Commission as an administrative body by the Ministry of Local Self-Government, because the Central Election Commission is not a vertical body that is subordinate to the Ministry and the Government. We have elections, if this vote is not successful, how will the head of state by government decree declare elections in the north? That is totally unconstitutional and illegal.

Will Kosovo pass a referendum law after this situation, so that for some similar situations the procedure is known, and not according to the Administrative Instruction?

I seriously doubt it because the law on referendums has constitutional limitations on what can be the subject of a referendum, on what issues it can be organized. I don't believe that will happen, because it's a sensitive issue, and just those constitutional limitations would be disturbed by law. I think it will be regulated by sectoral laws, as in the case of the north by amendments and supplements to the law, for other things other sectoral laws.

There are referendum modalities for non-political matters, but in a political sense, I doubt that will happen. If the vote in the north is unsuccessful, given that the Serbian List has announced a boycott, what are the next legal steps?

There are no legal steps. For that, there are decree steps, I haven't dealt with it much, but I think that can be repeated after a year. That is further complicating matters and to the detriment of Kosovo and Kosovo's reputation in the world and towards allies and other international actors.