On October 6, Kosovo’s Assembly voted on amendments to the Law on Specialist Chambers and the Specialist Prosecutor’s Office. The following day, the European Union reacted by expressing “deep concern” and assessing that the amendments run counter to Kosovo’s international obligations toward the EU.
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The Democratic Party of Kosovo, which initiated the amendments, rejected this assessment. According to the party, the aim is not to abolish the Specialist Chambers, while “Kosovo remains faithful to the obligations it undertook to investigate allegations of organ trafficking.”
The government led by the Vetëvendosje Movement did not comment to Radio Free Europe on the statement. During the review of the draft amendments, Prime Minister Albin Kurti had described them as “hasty.”
The adoption of domestic legislation that may conflict with an international agreement raises the question of whether such an agreement can be amended solely through Kosovo legislation.
Although the Assembly has the authority to adopt and amend laws, intervening in a domestic legal act does not automatically amend the international agreement to which it is linked.
Besfort Rrecaj, a professor of international law at the Faculty of Law of the University of Pristina, says that the agreement between Kosovo and the EU on the Specialist Chambers constitutes an international legal instrument. According to him, it can be revised only “with the consent of the parties.”
Consequently, Rrecaj adds, Kosovo must first agree on any possible changes with the EU.
“Kosovo can and should propose opening negotiations with the EU to amend the agreement, adapting it to the new changes,” Rrecaj told Radio Free Europe.
He underlines that any revision must guarantee the independence of the judiciary and the integrity of judicial proceedings.
Laws adopted by the Assembly may be referred to the Constitutional Court for a constitutional review by the President, the Government, the Ombudsperson or the Assembly. In addition, a group of at least 10 lawmakers may challenge the law within eight days of its adoption.
However, a special mechanism applies to the amendments related to the Law on the Specialist Chambers.
Point 3 of Article 162 of the Constitution gives the Specialist Chamber of the Constitutional Court, composed of international judges, exclusive jurisdiction over constitutional referrals concerning the Specialist Chambers and the Specialist Prosecutor’s Office.
The amendments voted on by the Assembly specifically seek to affect this rule. Under the domestic law, the jurisdiction of the Constitutional Chamber in The Hague to review the constitutionality of the Law on the Specialist Chambers would be transferred to Kosovo’s Constitutional Court.
Kosovo’s Constitution stipulates that ratified international agreements, together with legally binding norms of international law, take precedence over domestic laws.
One example of this was the Constitutional Court’s decision at the end of 2015 on the Association of Serb-majority municipalities. The Court called for the Association to be established in accordance with the 2013 Brussels Agreement, although it found that the agreement “was not entirely in compliance” with the Constitution. The reasoning was that, following ratification, “the establishment of the Association had become part of the domestic legal system.”
On this basis, Rrecaj explains that a new domestic law cannot be used to circumvent the international agreement with the EU if the two conflict.
“According to the case law of the Constitutional Court, ratified international agreements take precedence over Kosovo’s laws. The Constitution of Kosovo also gives international agreements precedence over its own provisions,” he explains.
How were the amendments concerning the Specialist Chambers rejected in 2020?
A similar situation occurred in 2020, when the then-president, Hashim Thaçi, requested an amendment to Article 162 of the Constitution, which defines the mandate of the Specialist Chambers and the Specialist Prosecutor’s Office.
His proposal envisaged amending paragraph 13 so that it would specify that the mandate would continue until the EU Council notified the parties of its termination, in consultation with the Government of Kosovo.
Thaçi also sought the complete removal of paragraph 14, which linked the continuation of the mandate to the 2014 Exchange of Letters.
The then-speaker of the Assembly, Vjosa Osmani, forwarded the proposals for a preliminary review by the Specialist Chamber of the Constitutional Court in The Hague. On November 26, 2020, the Chamber ruled that the amendments would restrict the fundamental rights and freedoms guaranteed by the Constitution and therefore could not be adopted.
In its judgment, the Chamber placed particular emphasis on the fact that Kosovo had not consulted the relevant EU authorities in advance.
It described the lack of consultations as a “procedural deficiency,” but clarified that the decision was not based solely on this circumstance. Nevertheless, the Chamber found that the obligation to consult was part of the constitutional requirements and was relevant to the legislative process in Kosovo.
What is the source of the obligation to consult?
The requirement to consult with the EU is linked to the way in which the legal basis for the Specialist Chambers was created.
This process began after the 2011 report of the Parliamentary Assembly of the Council of Europe, which included allegations of serious crimes committed during and after the war in Kosovo. Following the publication of the report, the EU established the Special Investigative Task Force to examine these allegations.
In 2014, Kosovo’s then-president, Atifete Jahjaga, and the EU’s High Representative, Catherine Ashton, exchanged letters on how cases would be handled if the investigations led to indictments and trials.
Through this Exchange of Letters, Kosovo undertook to establish specialist chambers and a specialist prosecutor’s office, while sensitive proceedings would be conducted outside Kosovo’s territory.
The document also required consultation with the relevant EU authorities during any legal changes that would affect these proceedings.
The Assembly ratified the Exchange of Letters on April 23, 2014, granting it the status of an international agreement between Kosovo and the EU.
On August 3, 2015, the Assembly approved the constitutional amendment through which Article 162 of the Constitution was created, as well as the Law on Specialist Chambers and the Specialist Prosecutor’s Office.
While it remains unclear how the Government will implement the new law in relation to its international obligations, the question of the practical effect this law will have also remains open.
