Recaj: Amending Law on Specialist Chambers requires agreement between Kosovo and EU

Besfort Recaj, professor of international law at the Faculty of Law of the University of Pristina, said that the agreement between Kosovo and the European Union concerning the Specialist Chambers was an international legal instrument that could be amended, but only with the consent of the parties that concluded it. He pointed out that if the new law conflicted with the international agreement with the EU, that domestic law could not be used to invalidate the agreement, Radio Free Europe reported.

For that reason, he stressed, Kosovo should first reach an agreement with the EU on amendments to the accord.

“Kosovo can and should propose opening negotiations with the EU on amending the agreement, adapting it to the new changes,” Recaj told RFE.

He emphasized that any amendments must preserve judicial independence and the integrity of judicial proceedings.

Recaj recalled that any law adopted by the Kosovo Assembly could be challenged before the Constitutional Court by the President, the Government, the Ombudsperson or the Assembly, while at least ten MPs could file a challenge within eight days of its adoption.

However, he explained that a special procedure applied when it came to amendments to the Law on the Specialist Chambers.

Article 162, paragraph 3, of the Constitution provides that the Specialist Chamber of the Constitutional Court, composed of international judges, has exclusive jurisdiction over constitutional referrals relating to the Specialist Chambers and the Specialist Prosecutor’s Office.

The amendments adopted by the Kosovo Assembly seek to change precisely this rule through ordinary domestic legislation by abolishing the jurisdiction of the Specialist Chamber of the Constitutional Court in The Hague to review the constitutionality of legislation governing the Specialist Chambers and transferring that responsibility to the Constitutional Court of Kosovo.

However, the Constitution of Kosovo provides that ratified international agreements and legally binding norms of international law take precedence over Kosovo laws.

Recaj recalled a case from late 2015, when the Constitutional Court ordered the establishment of the Community of Serb Municipalities, as envisaged by the 2013 Brussels Agreement, even though it found that it was “not entirely in compliance” with the Constitution. This was explained by the fact that, following ratification of the agreement, “the establishment of the Community became part of the domestic legal system.”

Therefore, according to Recaj, if the new law is contrary to the international agreement with the EU, domestic legislation cannot be used to invalidate that agreement.

“According to the Constitutional Court’s case law, ratified international agreements take precedence over Kosovo laws. The Constitution of Kosovo also gives international agreements precedence over its own provisions,” Recaj stressed.

A similar case arose in 2020, when then-President of Kosovo Hashim Thaci proposed amendments to Article 162 of the Constitution, which establishes the mandate of the Specialist Chambers and the Specialist Prosecutor’s Office.

Thaci proposed amending paragraph 13 to state explicitly that the mandate would continue until a decision by the Council of the EU to terminate it, in consultation with the Kosovo Government, as well as deleting paragraph 14 in its entirety, which linked the extension of the mandate to the 2014 exchange of letters.

The proposals were subsequently referred for preliminary review to the Specialist Chamber of the Constitutional Court in The Hague, after then-Assembly President Vjosa Osmani forwarded them to that court.

On November 26, 2020, the Specialist Chamber ruled that the proposed amendments would diminish fundamental rights and freedoms guaranteed by the Constitution and therefore could not be adopted, RFE recalled.

The decision specifically pointed to the fact that Kosovo had not previously consulted the competent EU institutions.

The Specialist Chamber described the lack of consultations as a “procedural deficiency,” while clarifying that its decision was not based solely on that issue. Nevertheless, it found that the obligation to consult formed part of the constitutional requirements and was relevant to Kosovo’s legislative process.

The obligation to consult the EU is linked to the manner in which the legal framework governing the Specialist Chambers was established.

The process began following a 2011 report by the Parliamentary Assembly of the Council of Europe containing allegations of serious crimes committed during and after the war in Kosovo. Following that report, the EU established the Special Investigative Task Force to investigate the allegations.

In 2014, former Kosovo President Atifete Jahjaga and EU High Representative Catherine Ashton exchanged letters concerning how cases would be handled if investigations resulted in indictments and trials. Through the exchange of letters, Kosovo undertook to establish specialist chambers and a specialist prosecutor’s office, while sensitive proceedings were to be conducted outside Kosovo.

The document also provided for consultations with the competent EU institutions when amending legislation that could affect those proceedings.

On April 23, 2014, the Assembly ratified the exchange of letters, thereby giving it the status of an international agreement between Kosovo and the EU.

Subsequently, on August 3, 2015, the Assembly adopted the constitutional amendment introducing Article 162 of the Constitution, as well as the Law on the Specialist Chambers and the Specialist Prosecutor’s Office.