Squaring the Circle in Kosovo

The implications of the Kosovo Constitutional Court judgment, and how the EU is ignoring them.

The last six months in Kosovo saw the deepest political divide in the country since the war. The opposition parties threw teargas in the parliament and MPs got arrested. During one of these arrests, the police raided the offices of the biggest opposition party. Numerous street protests took place, some large and peaceful and some involving clashes between protestors and police. All of this was portrayed in the international media with pictures of angry young men throwing Molotov cocktails. Statements by EU ambassadors and officials strongly condemned the violence. What the pictures and the statements failed to capture, however, were the reasons for all this turmoil.

In April 2013, as a part of the Kosovo-Serbia dialogue, the two prime ministers initialed an “agreement on the principles governing the normalization of the relations.” The Agreement, among other things, foresees the creation of the Association/Community of Serb majority municipalities (referred to subsequently as the Association). Ten out of 38 municipalities in Kosovo have Serb-majority populations. Most of these municipalities were created by the Ahtisaari Plan – which is now enshrined in the Kosovo Constitution – as Kosovo was preparing for independence in 2008. The idea was to decentralize power as much as possible to ethnic minorities in Kosovo.

In August 2015, as a part of the same dialogue, the prime ministers of Kosovo and Serbia agreed on the content – or the Principles – of the implementing legislation for the creation of the Association that had been agreed in 2013. But this second agreement was strongly rejected in Kosovo because it unveiled the intention to create an independent governing institution only for Serbs. This goes against the constitutional concept of multi-ethnicity and could threaten Kosovo’s sovereignty.

This is when the pictures of Molotov cocktails started appearing all over international media. The opposition pointed out that the 2015 agreement is unconstitutional and demanded that the Kosovo Government withdraw from it. As the government refused to even consider withdrawing, the opposition embarked on various forms of protest. They collected over 205,000 signatures supporting this demand. They organized street protests and blocked the work of the parliament by using tear gas. The Government kept asserting that the agreement they have reached with Serbia is in compliance with the constitution.

In trying to address the political deadlock in the parliament, the President of Kosovo asked the Constitutional Court to rule on whether the Principles are “compatible with the spirit of the Constitution.” The Court published its judgment in December 2015 and concluded that they are not. It also ruled that as the Association is established, the Constitution must be observed. More specifically, 18 Articles of the Constitution that regulate human rights, equality before the law, minority rights, governance, powers of municipalities etc.

While the conclusion of the judgment did not give the clearest verdict on the constitutionality of the Agreement – read the dissenting opinion for the shortcomings of the judgment – the body of the judgment underlined profound problems with it. The problems that the opposition had identified and was protesting against.

According to the Principles, the Association would be endowed with the power to “deliver public functions and services,” including the exercise of “full overview” over development of local economy, education, local primary and secondary health care and social care, and urban and rural planning. It would represent the Serb community in Kosovo in front of central authorities. Its staff would be civil servants. It would have the power to initiate laws, among other things.

These elements pointed to the creation of a new level of government for the Serbs in Kosovo, which would take powers from the municipalities and the central level, but would not be accountable to the central government.

The Constitutional Court ruled that these elements of the Agreement are not up to constitutional standard and that when the Association is established the following must be observed:

“the objectives of the Association…shall…not replace or undermine the status of the participating municipalities as the basic units of democratic local self-government (148)”

“the civil service is understood to be employment within a governmental body (157)” therefore “the Court concludes that the staff of the administration of the Association/Community shall not to be considered part of the Civil Service…(159)”

“the Court finds that the Association/Community cannot be vested with full and exclusive authority to promote the interests of the Kosovo Serb community in its relations with the central authorities (166)”

“the Court finds that the Association/Community cannot be entitled to propose amendments to legislation and other regulations (173)”

And, perhaps most importantly, the Court noted that the Association “shall be an organization within the meaning of Article 44 of the Constitution (132)”. This article allows everyone – including municipalities – to create associations. But it also allows the courts to prohibit those associations if they “infringe in the constitutional order.” The Principles foresaw only one way to dissolve the Association, “by a decision of its Assembly adopted by a 2/3 majority of its members.” Not foreseeing any oversight by Kosovo courts or other central institutions.

So it is not just a matter of wording, as many proponents of the Principles have been arguing these past months. The Constitutional Court ruled that the essence of the Association is not up to constitutional standard. In order for the Association to be created in Kosovo, it must be stripped from all the elements above, and more. In fact, it should look a lot more like the Zajednicko Vijece Opcina (ZVO) – the Joint Municipal Council of Serb majority municipalities in Croatia. The ZVO does not have executive functions nor is it a governing institution. It is an Association that furthers human rights in Croatia, with special focus on the Serb community.

A day after the Constitutional Court judgment was published, the EU Office in Kosovo issued a short statement calling on all parties to draft the necessary legislation that will create the Association, and make this happen rapidly. The statement failed to mention the part of the judgement that deems the Principles to not be in compliance with the spirit of the Constitution, in an effort to ignore the implications from this judgement.

But the implications are stark. It will be impossible to write legislation, which will both be in compliance with the constitution and can establish the Association in the way that the Governments of Serbia and Kosovo – and the EU – want.

The EU, as the official facilitator – and unofficial broker – of the Kosovo-Serbia dialogue, must not ignore the implications of this judgment. It should allow political processes in Kosovo to take their course and not issue statements that pressure the Kosovo Government to implement “rapidly” something that it cannot.

The Kosovo Government should be aware that it will be obliged to establish the Association – even though it cannot do it in compliance with the constitution – unless it withdraws from the Agreement altogether. I believe that after the Constitutional Court Judgment, withdrawing from the initial Agreement has become something to consider.

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