Once Kosovo accedes to more international agreements, it may be anticipated that the Constitutional Court will contribute to shaping the relationship between international and domestic law. In addition, since many provisions of the Constitution are not lucid with regard to the competences of the Constitutional Court, it will equally have to interpret domestic provisions concerning its jurisdiction to engage in legal matters related to international law. In this vein, although the Constitution is silent as to whether courts can review legislation for compatibility with international law, the Constitutional Court has not been reluctant to challenge the legality of the Statute of the Municipality of Prizren for its non-compliance with the Constitution and the Framework Convention on Minorities. In the Kurtishi case, the Constitutional Court highlighted that the review of the contested municipal statute must be carried out not only against the Constitution but also the Framework Convention, which enjoys supremacy over law.²¹ This approach provides that at least as far as Article 22 of the Constitution is concerned, the Constitutional Court can review the compliance of laws and other legal acts with those domesticated international instruments.

Regarding the review of compatibility of the ratified international agreements with the Constitution, no explicit provision could be found in the Constitution. However, since international agreements are ratified by the Assembly of Kosovo in the form of an enactment of a law,²² or are ratified by the President of the Republic in the form of a presidential decree, in both cases the deputies of the Assembly are entitled to file a referral to the Constitutional Court to review the respective law or presidential decree before it enters into force.²³

With regard to a review of the consistency of the constitutional amendments with international law, the Constitution in clear terms enables the Constitutional Court to review the ‘compatibility of a proposed constitutional amendment with binding international agreements ratified under this Constitution’.²⁴

As far as the law of the UN Charter is concerned, the Constitutional Court in case No. KI 25/10 addressed not just a legal, but also a political question, that of Kosovo’s statehood and the ability of State institutions to exercise their constitutional public authority after the adoption of the Kosovo Declaration of Independence of 17 February 2008 (Declaration of Independence). The case was brought before the Constitutional Court after EULEX international judges of the Special Chamber of the Supreme Court of Kosovo (Special Chamber) refused to accept the validity of laws adopted by the Assembly of Kosovo insofar as they repealed the UNMIK Regulations.

The Constitutional Court’s 2012 annual report indicates that more than 90 % of the constitutional referrals originated from individuals on matters involving human rights.³⁷ In scrutinising the Constitutional Court’s case-law, it is evident that ECtHR jurisprudence has been indispensable in the Court’s adjudication.

In the case concerning the deprivation of life of Ms. D.K., the parents of the deceased submitted a referral to the Constitutional Court against the Municipal Court of Prishtina for the failure of the latter to issue an emergency protection order to prevent continuous threats from the perpetrator.³⁸ The applicants argued that the Municipal Court of Prishtina, by its inaction to deal with the request for the emergency protection order, had violated, inter alia, the right to life of D.K., guaranteed under Article 25 of the Kosovo Constitution and Article 2 of the ECHR. It is noteworthy that the applicants requested that the Constitutional Court address this issue with the aim of preventing similar tragic cases in the future, as well as to increase public awareness of the functionality of the regular courts.

The Constitutional Court recalled that, ‘in accordance with Article 53 of the Constitution, it is its constitutional obligation to conduct an interpretation of human rights and fundamental freedoms in accordance with the case-law of ECtHR’.³⁹ By referring to the ECtHR cases L.C.B. v. the United Kingdom and Osman v. the United Kingdom, the Constitutional Court held:

it is the duty of the state authorities not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction… This involves … in appropriate circumstances positive obligations on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.⁴⁰

Relying on ECtHR case-law, the Constitutional Court held that the inaction of the Municipal Court of Prishtina represented a violation of Article 25 of the Constitution and Article 2 of the ECHR.⁴¹

The ‘constitutional obligation’ to conduct an interpretation in accordance with the case-law of the ECtHR is reflected in other cases pertaining to human rights and fundamental freedoms. In a case concerning labour rights,⁴² the applicant requested an assessment of the constitutionality of the judgment of the Supreme Court, because of an alleged ‘lack of official communication between the Supreme Court and the respondent’.⁴³ The applicant argued that he was an interested party in the case lodged by his employer at the Kosovo Supreme Court and therefore, by not being informed of the ongoing case against him, this ‘provided room for suspicions that we are dealing here with manipulations and that as a consequences of this, he as an interested party, has been materially and morally damaged’.⁴⁴

The applicant considered that his right to a fair trial had been infringed ‘because neither the employer nor the Supreme Court notified him of the appeal or its disposition’.⁴⁵

Declaring invalid the decision of the Supreme Court, the Constitutional Court held that a failure of the Kosovo Supreme Court to duly inform the applicant of the judicial process and to enable the submission of evidence and facts in the judicial proceedings constituted a breach of Article 31 of the Constitution and Article 6(1) of the ECHR.⁴⁶ The Constitutional Court went on to say that although the right to take part in a hearing was not expressly mentioned in Article 6(1) of the ECHR, the case-law of the ECtHR revealed that:

the object and purpose of the Article taken as a whole show that a person charged with a criminal offence is entitled to take part in the hearing…. This right is implicit in the very notion of an adversarial procedure … [and] applies to both civil and criminal proceedings.⁴⁷

In a case concerning the participation of the public in an environmental decision-making process, the reference to ECtHR jurisprudence was pivotal in interpreting the scope of constitutional rights. In the case Hoxha et al v. Municipal Assembly of Prizren, the applicant claimed that the constitutional right to public participation was infringed when the Municipal Assembly of Prizren amended the Detailed Urban Plan (DUP), allowing the construction of high tower blocks.⁴⁸ The applicant argued that the DUP decision taken in the absence of public review and public participation violated Article 52(2) of the Constitution, which provides:

everyone should be provided an opportunity to be heard by public participation and have their opinions considered on issues that impact the environment in which they live.

The Constitutional Court viewed that the adoption of the DUP decision by the Municipality of Prizren without any public consultation or any other type of participation had violated the applicant’s rights guaranteed under Article 52(2) of the Constitution.⁴⁹ Furthermore, the Constitutional Court viewed that the ECtHR ‘has given clear guidance that both Article 2 (the right to life) and Article 8 (the right to respect for the home, private and family life) include environmental protection’.⁵⁰ On this argument, the Constitutional Court referred to the ECtHR cases Hatton and Others v. the United Kingdom, Guerra and Others v. Italy and McGinley and Egan v. the United Kingdom and indicated:

[w]here a State must determine complex issues of environmental and economic policy, the decision-making process must firstly involve appropriate investigations and studies in order to allow them to predict and evaluate in advance the effects of those activities which might damage the environment and infringe individuals’ rights and to enable them to strike a fair balance between the various conflicting interests… The importance of public access to the conclusions of such studies and to information which would enable members of the public to assess the danger to which they are exposed is beyond question.⁵¹

The case reveals that the Constitutional Court not only advanced the standards of the participation processes in the environment-related decision-making process in line with the interpretation of the right to a healthy environment,⁵² but also made an invaluable impact on shaping pertinent State policies.

The Constitutional Court has also relied on the principles of proportionality and continued violation, as developed by the Strasbourg Court.

In Bislimi v. Ministry of Internal Affairs, also known as the Passport case, the Constitutional Court followed the proportionality principle in order to assess whether measures undertaken by the Ministry of Interior, amounting to a restriction on the freedom of movement as provided by Article 35 of the Constitution in conjunction with Article 2(2) of Protocol No. 4 to the Convention, were proportionate. The Constitutional Court declared that depriving a person of a passport where he or she did not present a ‘certificate that they are not under criminal investigation’ violated the freedom of movement and concluded that ‘the authorities have failed in their obligation under Article 2 of Protocol No. 4 to the [ECHR] to ensure that any interference with an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in the light of the circumstances’.⁵³ In the case of Ibrahimi and others v. Kosovo Supreme Court, the applicants argued that a failure of their former employer, the Kosovo Energy Corporation (KEK), to pay the agreed pension packages constituted a violation of the constitutional right to property.⁵⁴ The subject matter was initially dealt with by the Municipal Court, which approved the applicants’ claims and ordered monetary compensation. Deciding on the appeal, the District Court in Prishtina rejected the appeals of KEK and found their submissions ungrounded. However, the Supreme Court accepted the revisions of KEK, and quashed the judgment of the District Court of Prishtina and rejected the applicants’ claims as unfounded. The parties filed a complaint with the Constitutional Court, seeking relief for the alleged constitutional violation of the right to property and a fair trial. In assessing the admissibility requirements, the Constitutional Court was confronted with the question as to whether the complaint was admissible ratione temporis as provided by the Law on the Constitutional Court:

[t]he referral should be submitted within a period of four (4) months. The deadline shall be counted from the day upon which the claimant has been served with a court decision. In all other cases, the deadline shall be counted from the day when the decision or act is publicly announced.

The Constitutional Court noted that the 4-month period for the submission of the referral was not observed by the applicants, but argued that

the time limit as prescribed by the European Convention of Human Rights does not start to run if the Convention complaint stems from a continuing situation … According to the case-law, where the alleged violation is a continuing situation, the time limit starts to run only from the end of continuing situation.⁵⁵

In declaring the complaint as admissible and constitutionally grounded, the Court recalled the doctrine of continuous violation, and argued that

[i]n the present case the Applicants still suffer from the unilateral annulment of their Agreements signed by KEK. They argue that it is well established that the Pension and Invalidity Insurance Fund has not been established to date. Therefore, there is a continuing situation. As the circumstance of which the Applicants complain continued, the four months period as prescribed in Article 49 of the Law is inapplicable to these cases.⁵⁶

In another case concerning continued violation, the Constitutional Court utilised the said principle but without referring to the ECtHR case-law.⁵⁷ In the President Sejdiu case,⁵⁸ 32 deputies of the Kosovo Assembly filed a referral to the Constitutional Court arguing that Mr. Sejdiu had violated Article 88 of the Constitution by holding simultaneously the position of President of the Republic of Kosovo and that of President of his political party, the Kosovo Democratic League (LDK).⁵⁹ It was considered that Mr. Sejdiu held the position of President of the LDK for more than 3 years from the date of the filing of the referral with the Constitutional Court. Therefore, the Constitutional Court had, inter alia, to assess whether the referral was lodged within the time limit as required by Article 45 of the Law on the Constitutional Court of the Republic of Kosovo, which provides that:

the referral should be filed within a period of thirty (30) days starting from the day the alleged violation of the Constitution by the President has been made public.

In addressing the time limit for filing a claim before the Constitutional Court, the majority of the judges asserted:

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  32. [i]n the case of President Sejdiu it is necessary to look at the factual situation to see whether the holding of the office of President/Chairman of the LDK, ‘but freezing that position’, was a single event that occurred at one time or whether it amounts to a continuing day by day situation …. The President admits that he has continued to be the Chairman of LDK and President of Kosovo at all times since his election to the office of President in 2006.
  
  
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  33. If this is the case, the consequences of the freezing of the position continue and therefore there is a day by day ongoing situation. To conclude otherwise could result in a situation whereby the President of Kosovo could be barred from holding the Office of the President because of a constitutional violation, but be allowed to continue in office simply because a referral was not made to the Constitutional Court in a timely manner. Nowhere in the Constitution is there any authority for such an irrational result. Nor does Article 45 of the Law on the Constitutional Court envision such an irrational result.⁶⁰

The Constitutional Court found that the violation in question was continuous and the time foreseen in Article 45 of the Law on the Constitutional Court could not apply to a serious violation that continued.⁶¹ While the Constitutional Court applied the principle of a continued violation, it is to be expected that the reference to the ECtHR would have made the Constitutional Court’s judgment in the Sejdiu case not only logical, but also persuasive in view of the principles of the ECtHR.⁶²

In view of the foregoing, the degree of adherence to the ECHR by the Constitutional Court in the protection of constitutional rights and fundamental freedoms has at least two significant impacts. The first is an explicit manifestation of the direct application of the ECHR and the ECtHR jurisprudence by virtue of Articles 22 and 53 of the Constitution. In this vein, the Constitutional Court seized the momentum to influence the courts of general jurisdiction and encouraged them to follow the practice of the direct application of the ECHR and its Court’s case-law. The second important dimension relies on the fact that the Constitutional Court’s reception of the ECHR has gradually increased the awareness of individuals and others about the ECHR and its requirements. In light of Kosovo’s endeavours to join the Council of Europe, the educational role of the Constitutional Court is of invaluable pertinence in preparing litigants to utilise the ECHR system.

In international criminal adjudication, the challenges often rest in the applicable law. In responding to questions of retroactivity, elements of crimes, standards that apply to internal and international armed conflicts, judges of international criminal tribunals in their judicial creativity utilise customary international law ‘with an immense flexible technique … to mould and develop the law’.⁶³ However, international judges in Kosovo, being fully integrated in the domestic judicial system, do not have that privilege of making use of their own statutory sources of law in the process of adjudication. Instead, they may generally resort to those sources of international law which have been made applicable in the domestic legal order. With regard to war crimes in the 1998–1999 Kosovo conflict, the point of consideration is the international law part of the national legal order at that time.⁶⁴ With that task not being easy, controversies may be revealed when unwrapping the war crimes jurisprudence of EULEX international judges, and further in comparison with the jurisprudence of their predecessors, UNMIK international judges.

Before further discussion on jurisprudence, it is first appropriate to outline the legal provisions governing the law applicable in Kosovo. In particular, the UNMIK Regulation provides that the law applicable in Kosovo shall include the UNMIK Regulations and

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  … [t]he law in force in Kosovo on 22 March 1989…
  
  
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  1.2 If a court of competent jurisdiction or a body or person required to implement a provision of the law, determines that a subject matter or situation is not covered by the laws set out in section 1.1 of the present regulation but is covered by another law in force in Kosovo after 22 March 1989 which is not discriminatory and which complies with section 1.3 of the present regulation, the court, body or person shall, as an exception, apply that law.⁶⁵

The aforementioned provision has proved to be of fundamental importance in the discussion on the relevant legal framework, particularly in the process of identifying the applicable constitution between the Constitution of the Federal Republic of Yugoslavia of 27 April 1992 (1992 FRY Constitution) and the Constitution of the Socialist Federal Republic of Yugoslavia of 21 February 1974 (1974 SFRY Constitution). The consequence of that decision has a significant impact upon the adjudication of war crimes in that the former permits the application of customary international law and the latter does not.

On this question, an important response came in 2003 from the District Court of Prishtina in the panel composed of UNMIK international judges. In the war crimes case known as Gashi and others, the trial panel applied the 1992 FRY Constitution in order to employ customary international law with respect to charges of war crimes in the 1998–1999 Kosovo conflict.⁶⁶ In that manner, the trial panel resorted to norms of customary international law with regard, inter alia, to unlawful internment and command responsibility.⁶⁷ This decision, however, was reversed upon appeal. In 2005, the Supreme Court of Kosovo, in a panel composed of UNMIK international judges, held that according to the UNMIK Regulation 1999/24 it was not the 1992 FRY Constitution but the 1974 Constitution that applied in Kosovo.⁶⁸ The appeals panel found that Articles 181 and 210 of the 1974 SFRY Constitution did not make customary international law applicable and thus the trial panel had erred in law in its findings on unlawful internment and command responsibility in the Kosovo internal armed conflict.⁶⁹ The appeals panel ruled that through the 1974 Constitution only the four ratified Geneva Conventions and the Additional Protocols I and II were applicable at the material time.⁷⁰ As a result, the appeals panel ordered the re-trial of Gashi and others.

EULEX international judges continued from where UNMIK international judges had left off, including the Gashi and others case.⁷¹ Yet, a different approach from that of their predecessors surfaced. While in 2005 the appeals panel of UNMIK international judges had firmly rejected the application of customary international law, EULEX international judges considered otherwise. Namely, the Supreme Court of Kosovo, in a mixed panel of EULEX international judges, in the further proceedings in Gashi and others