© Springer-Verlag Berlin Heidelberg 2015Siniša Rodin and Tamara Perišin (eds.)Judicial Application of International Law in Southeast Europe10.1007/978-3-662-46384-0_9
Judicial Application of International Law in Kosovo
Graduate Institute of International and Development Studies, Geneva, Switzerland
University of Graz, Graz, Austria
Faculty of Law, Department for Constitutional and Administrative Law, University of Prishtina, Prishtina, Kosovo
The Constitution of the Republic of Kosovo (hereinafter the ‘Constitution’ or the ‘Kosovo Constitution’) follows a ‘strong regime of domestic incorporation’ of international law.1 Certain international human rights conventions are domesticated through the Constitution, and all ratified international agreements and legally binding norms of international law are granted supremacy over Kosovo laws.2 The constitutional provisions related, inter alia, to the status of international law in the Kosovo legal order and the protection of minorities reflect largely verbatim the Comprehensive Proposal for the Status Settlement of Kosovo (the Ahtisaari Status Proposal), a framework document prepared by United Nations Special Envoy Mr. Martti Ahtisaari for the determination of the final political status of Kosovo.3
While Kosovo is not yet a member of the United Nations (UN) or the Council of Europe, it has accorded constitutional rank to the provisions of eight international human rights instruments, including the Universal Declaration of Human Rights (UDHR) and the Council of Europe Framework Convention for the Protection of National Minorities (Framework Convention on Minorities). Furthermore, Article 53 of the Kosovo Constitution requires that all human rights be interpreted consistently with the case-law of the European Court of Human Rights (ECtHR). These peculiar features of the reception of international law in the Kosovo Constitution are scrutinised in the second part of this contribution.
The paper develops by examining the judicial application of international law by domestic and international judges embedded in Kosovo courts. The Kosovo Constitutional Court4 has rendered some landmark decisions concerning the place of international law in the Kosovo legal order.5 In its rather embryonic phase, domestic and international judges of the Constitutional Court have been challenged with cases that prompted the statehood of Kosovo and the mandate of the Assembly of Kosovo to adopt laws that invalidate international legal obligations, namely Regulations of the United Nations Interim Administration Mission in Kosovo (UNMIK).6 In addition, the application of international human rights instruments and the ECtHR case-law is indispensable in the Constitutional Court’s jurisprudence. These interactions with the UN and ECHR law, coupled with initial remarks on the Constitutional Court’s mandate to deal with international law, are covered in the third section.
International judges have also been embedded in courts of general jurisdiction within the framework of the European Union Rule of Law Mission in Kosovo (EULEX), and whose decisions constitute part of the Kosovo domestic jurisprudence.7 In inspecting the war crimes jurisprudence of EULEX international judges, fourth section analyses the challenges in adjudication of crimes emanating from the internal armed conflict and the challenges in utilising customary international law in the Kosovo legal order. The same section observes the judicial application of international agreements concerning state succession and the degree of application of the ECtHR case-law in the jurisprudence of EULEX international judges.8
The fifth section examines the judicial application of international law by local judges of courts of general jurisdiction.9 In elucidating the scarce application of ECtHR case-law, this part shows the challenges associated with resources and education of judges and suggests tools to strengthen the application of international law.10
Finally, the discussion is wrapped up with highlights and concluding remarks.
2 Reception of International Law in the Kosovo Constitution
As to the manner in which international law is incorporated in the Kosovo legal order, at least three models can be identified in the Kosovo Constitution.
Firstly, by means of ratification of international agreements by Kosovo institutions, international treaties become ‘part of the internal legal system … [and] are directly applied except for cases when they are not self-applicable and the application requires the promulgation of a law’.11 In the process of accession to international agreements, the Kosovo institutions with ratifying powers may make reservations or withdraw from the international agreements.12 The Constitution emphasises in Articles 16 and 19 that Kosovo shall respect international law and that ratified international agreements have supremacy over Kosovo laws.
Secondly, international law reaches the Kosovo legal system through Article 19(2) of the Constitution, which accords priority over Kosovo laws to the legally ‘binding norms of international law’. Yet, the Constitution does not clarify this concept. Furthermore, since the travaux préparatoires on the constitution drafting are inaccessible, the scope of ‘legally binding norms of international law’ remains open for interpretation. One may view that the ‘legally binding norms of international law’ encompass norms of jus cogens, other recognised norms of customary international law, and potentially the obligations emanating from the Security Council resolutions adopted under Chapter VII of the UN Charter. A wider interpretation would allow considerations that all sources of international law listed in Article 38 of the Statute of the International Court of Justice (ICJ) could be covered by the ‘legally binding norms of international law’.13 These pending questions yet remain to be answered by the Constitutional Court. So far, the judicial practice of Kosovo courts reveals that at least norms of customary international law are applicable in the Kosovo domestic legal order.14 In light of Kosovo’s endeavours to join the European Union (EU), Article 19(2) of the Constitution presents a potential question if EU law, too, would be accommodated. Where the EU Member States used their constitutional provisions on international law in integrating EU law, one could argue that similarly Article 19(2) of the Constitution opens the door for EU law.15
The third model is peculiar to the Kosovo legal order in that it reproduces certain international instruments and jurisprudence. In particular, Article 22 of the Constitution provides that
[h]uman rights and fundamental freedoms guaranteed by the following international agreements and instruments are guaranteed by this Constitution, are directly applicable in the Republic of Kosovo and, in the case of conflict, have priority over provisions of laws and other acts of public institutions:
(1) Universal Declaration of Human Rights;
(2) European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols;
(3) International Covenant on Civil and Political Rights and its Protocols;
(4) Council of Europe Framework Convention for the Protection of National Minorities;
(5) Convention on the Elimination of All Forms of Racial Discrimination;
(6) Convention on the Elimination of All Forms of Discrimination Against Women;
(7) Convention on the Rights of the Child;
(8) Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.
Further, Article 53 requires that ‘[h]uman rights and fundamental freedoms guaranteed by this Constitution shall be interpreted consistently with the court decisions of the European Court of Human Rights’ (ECtHR). Article 22 of the Constitution, which domesticates international human rights instruments, is a verbatim rendering of the Ahtisaari Status Proposal.16 This model particularly reveals the role of international actors in defining the place of international law in the Kosovo domestic legal order.17 As the ECtHR Judge Lech Garlicki observes from experiences in constitution drafting in emerging democracies:
[s]hort of military intervention and/or economic pressure, the most civilised way of imposing certain standards upon national processes of constitution drafting is to ‘universalise’ these standards by expressing them in the norms of international law. Such norms, if vested with sufficient binding authority, can pre-define the content of national constitutions leaving to the framers of a particular constitution no alternative but to reproduce them in the text of the constitution.18
A concern with regard to pure constitutional domestication of international law is the viability of its application. Notwithstanding the significance of Articles 22 and 53 of the Constitution, as Marc Weller remarks, some of the international conventions and instruments listed in these constitutional provisions ‘may not in fact be suited to operating as self-executing provisions’ in the Kosovo legal order.19 While the Kosovo Constitution makes directly applicable the UDHR and the Framework Convention on Minorities, the former is a non-binding UN General Assembly resolution, and the latter was deliberately drafted as a ‘framework’ convention, as it was assumed that its provisions would not be directly enforceable.20 Furthermore, since Kosovo has not yet joined the United Nations or the Council of Europe, citizens as well as other interested parties cannot benefit from the political or judicial mechanisms of the respective international organisations in terms of supervising or enforcing international human rights by Kosovo institutions.
As to the supremacy and direct effect of the UDHR, it would be interesting to observe what the response of the Kosovo courts and other institutions would be if, with Kosovo’s economy as it is, claims were filed based on the right to social security as guaranteed under Article 22 of the UDHR, or the right to food, clothing, housing and medical care foreseen under Article 25 of the UDHR.
3 Judicial Application of International Law by the Constitutional Court
3.1 Preliminary Remarks: Institutional Competencies to Provide Judicial Review on Issues Involving International Law
In 5 years of operation of the Kosovo Constitutional Court, significant jurisprudence has been developed with regard to the place of domesticated international instruments and the ECtHR in the Kosovo legal order. However, international instruments and the ECtHR case-law have been applied not as part of foreign (international) law but as a matter of domestic constitutional law. Furthermore, due to the lack of membership in the Council of Europe, the decisions of the Kosovo Constitutional Court are not subject to the jurisdiction of the ECtHR.
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
3.2 The Application of UN Law
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 approach of the EULEX international judges of the Special Chamber raised two relevant issues. Firstly, whether in the case of inconsistency, the UNMIK Regulations adopted by the UNMIK Special Representative of the Secretary-General (‘SRSG’) pursuant to the SC Resolution 1244 prevailed over the Kosovo Constitution and the laws adopted by the Assembly of Kosovo after the Declaration of Independence. Secondly, whether the Assembly of Kosovo, by adopting national legislation after the Declaration of Independence, could repeal the UNMIK regulations adopted on the authority deriving from the UN Charter and thus possessing an international law character.
3.2.1 Relevant Facts and Previous Stages Before EULEX International Judges
Prior to the adoption of the Declaration of Independence, laws adopted by the Assembly of Kosovo could be promulgated only upon the final approval of the SRSG.25 UNMIK Regulations and Administrative Instructions were adopted and promulgated exclusively by the SRSG. Since the adoption of the Declaration of Independence, the Assembly of Kosovo promulgated the Constitution and laws without requesting the consent of the SRSG as to their compatibility with UN SC Resolution 1244 or UNMIK Regulations.
Three months after Kosovo declared its independence, the Assembly of Kosovo passed the Law on the Privatisation Agency of Kosovo (Law on PAK).26 The Law on PAK established the Privatisation Agency of Kosovo (PAK) as an ‘independent public body [and as] the successor of the Kosovo Trust Agency’ (KTA) previously regulated under UNMIK Regulation No. 2002/12 as amended.27 Article 31(1) and Article 31(2) of the Law on PAK provides that this Law ‘shall supersede any provisions in the Applicable Law which are inconsistent herewith [and that the] UNMIK Regulation 2002/12 as amended will cease to have legal effect after the Law on PAK enters into force’.
In the case concerning PAK’s activities in the privatisation process in Kosovo, the Special Chamber of the Supreme Court of Kosovo (Special Chamber), composed of EULEX international judges, in the first and second instance refused to recognise the Law on PAK as applicable law. As a consequence, it did not recognise the PAK as a successor of the KTA, but instead considered UNMIK Regulation 2002/12 as amended to be still in force, and the Law on PAK as a non-law.28
On 23 April 2010, PAK filed a referral to the Constitutional Court of the Republic of Kosovo, asking the Court to review the constitutionality of Decision No. ASC-09-089 of the Special Chamber.
3.2.2 The Constitutional Court’s Assessment
From a domestic constitutional perspective and in view of the Constitutional Court’s jurisdiction, the Court had to elucidate whether the Assembly of Kosovo duly adopted the Law on PAK and whether, according to the Constitution, the Assembly had a mandate to repeal UNMIK Regulation No. 2002/12 as amended on the establishment of the KTA. On this matter, the Court referred to pertinent constitutional provisions and reasoned:
[i]n accordance with Article 145 [of the Constitution,] … [UNMIK] Regulations and Administrative Instructions as well as other legislation will only continue to apply to the extent they are in conformity with the Constitution until repealed, superseded or amended in accordance with the Constitution.
Therefore, relevant UNMIK Regulations and Administrative Instructions only continue to be applicable as long as they are in conformity with Law [on PAK].
In these circumstances, … the Special Chamber of the Supreme Court, in its Decision ASC-09-089, clearly did not ‘ensure the uniform application of the law’, as envisaged by the [Ahtisaari Status] Proposal, nor did it act in conformity with its duties under …. Article 102  of the Constitution [which reads that courts shall adjudicate based on the Constitution and the law], since it did not apply Law [on PAK] … as a Law, duly adopted by the Assembly of Kosovo, but as valid and binding internal rules of organization for PAK.29
In the Court’s view, this problematique emanated because the ‘Special Chamber does not apply the laws lawfully adopted by the Assembly [and] simply continues to ignore the existence of Kosovo as an independent State and its legislation emanating from its Assembly’.30
The Court reminded EULEX international judges of their paradoxical approach with regard to the applicable law in Kosovo and viewed that:
[it is] inconceivable that EULEX international judges – integrated in the Special Chamber of the Supreme Court of Kosovo in accordance with Law on [the Jurisdiction, Case Selection and Case allocation of EULEX international judges and Prosecutors in Kosovo], duly adopted by the Assembly of [the Republic of] Kosovo – refuse to apply laws duly adopted by the Assembly of the Republic of Kosovo.31
The Court also referred to the ICJ Advisory Opinion in the Kosovo case and held
the establishment of the Republic of Kosovo as an independent and sovereign state, based on the declaration of independence and whose statehood was recognized, so far, by … countries, is, therefore, not contrary to Security Council Resolution 1244(1999) as well as international law.32
One might view that the discussion on the compatibility of the Declaration of Independence with SC Resolution 1244 is an attempt to establish judicial comity between the Constitutional Court and EULEX international judges. In its deductive reasoning, the Constitutional Court seems to have instructed EULEX international judges that because the Declaration of Independence is not contrary to SC Resolution 1244, the laws adopted by the Assembly of Kosovo are also compatible with SC Resolution 1244, even when they repeal UNMIK Regulations.
Based on the foregoing constitutional considerations, the Court invalidated decision No. ASC-09-089 of the EULEX international judges of the Special Chamber and remanded it to comply with the decision of the Constitution Court.
Following that decision of the Constitutional Court a mixed panel of EULEX international judges of the Special Chamber in the decision SCA-09-0042 of 29 November 2012 recognised that the reasoning of the Constitutional Court was binding only with respect to interpretation of the Kosovo Constitution but not of the UN law.33 The Special Chamber further held
[Declaration of Independence of Kosovo] did not have any influence on the validity and applicability of UN law [including UNMIK regulations] as the latter did not depend on the acceptance of the addressee. 34
Accordingly, from the perspective of UN law, UNMIK regulations could not be affected or repealed by Kosovo law. However, in the view of the Special Chamber UNMIK Regulation No 2002/12 as amended was not anymore applicable because the interim administration had in fact ended.35 The Special Chamber concluded
[i]n view of the inability of the Security Council to resolve the status of Kosovo and the omission of UNMIK to administer Kosovo (which would require more than expressing concern and protesting) the acts of Kosovo legislature were valid even if they conflicted with UN regulations issued by UNMIK.36
The outcome reached by the mixed panel of EULEX international judges and by the Constitutional Court was the same. Both judicial bodies opined that the law applicable to privatisation matters was the Law on PAK and not UNMIK Regulation 2002/12. However, the paths of legal arguments employed in arriving at that conclusion, particularly as concerns UN law, differed greatly.
This tensed judicial dialogue showed not only a different understanding by the Constitutional Court and by EULEX international judges of the place of UN Charter in the Kosovo legal order, it also revealed political and legal challenges of the Constitutional Court in guarding the primum verum—the first truth of the newly established State Parliament’s mandate to legislate. In doing so the Constitutional Court also guided EULEX international judges and other international authorities in Kosovo—who remained neutral on Kosovo’s political status—in the enforcement of legal framework adopted by the Assembly of Kosovo subsequent to the Declaration of Independence.
3.3 The Application of the ECHR and the ECtHR’s Case-Law
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:
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.
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.
4 Judicial Application of International Law by Mixed Panels of EULEX International Judges
4.1 The Application of International Criminal Law
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
… [t]he law in force in Kosovo on 22 March 1989…
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