PDK MP Përparim Gruda said that the law amending the Law on the Specialist Chambers had been drafted in the most appropriate manner and, in his view, was not in conflict with either the Constitution or Kosovo’s international obligations.
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Gruda acknowledged that the question of whether the Specialist Chambers will implement this law remains open, stressing that there is concern that the institution may attempt to interpret it differently.
“It is reasonable to ask whether the Specialist Chambers will implement the new law.
So far, it has demonstrated that it is willing to interpret Kosovo’s laws and Constitution from its own perspective. For this reason, I expect there to be obstacles to the implementation of this law as well.
However, the main question is whether Kosovo, as a state, has the ability to compel the Specialist Chambers to implement it.
The answer is yes, absolutely yes.
I am convinced that we will find the legal and institutional means to make the Specialist Chambers implement the law of the Republic of Kosovo. This requires determination from the state, institutions and society. And we will succeed.
This law may lead Kosovo into a legal and institutional confrontation with the Specialist Chambers. If such a situation arises, Kosovo must firmly defend its law. I believe that in the end, the Specialist Chambers will be forced to implement it,” Gruda wrote on Facebook.
The MP went on to present his constitutional arguments regarding the law.
“Was the law drafted in accordance with legal requirements? Yes.
Does this law prevent the Constitutional Chamber in The Hague from repealing it? Yes.
Does the law conflict with the Constitution? No.
This is determined by Amendment No. 24 to the Constitution itself.
Article 162, paragraph 1, states that ‘the organization, functioning and jurisdiction of the Specialist Chambers and the Specialist Prosecutor’s Office shall be regulated by this Article and by a specific law.’
Likewise, paragraph 3 stipulates that the Specialist Chamber of the Constitutional Court shall decide on constitutional referrals relating to the Specialist Chambers and the Specialist Prosecutor’s Office ‘in accordance with the specific law.’
It is precisely the phrase ‘in accordance with the specific law’ that is essential.
This means that the Constitution links the jurisdiction of this Chamber to the specific law.
What have we done? We have not intervened in the Constitution; rather, we have amended the law in an area that the Constitution leaves to be regulated and specified through a specific law.
Article 23 now clearly stipulates that the Specialist Constitutional Chamber shall decide ‘exclusively and only’ on referrals challenging decisions, orders or judgments of the Specialist Chambers and the Specialist Prosecutor’s Office.
Therefore, the competence of the Constitutional Chamber has not been eliminated. It will continue to review the decisions, orders and judgments of the Specialist institutions.
The change lies in the limitation established by the law: ‘The Specialist Constitutional Chamber shall have no jurisdiction over the abstract, concrete, incidental or any other form of review of the constitutionality of this law and Law No. 05/L-053.’
To make this issue even clearer, paragraph 2 of Article 23 specifies: ‘The constitutionality of this law and Law No. 05/L-053 may be reviewed only by the Constitutional Court of the Republic of Kosovo in its regular composition in Pristina.’
Meanwhile, paragraph 3 stipulates: ‘No authorized party under Article 113 and Amendment 24 to the Constitution may request a review of the constitutionality of this law before the Constitutional Chamber in The Hague, but only before the Constitutional Court in Pristina.’
According to Gruda, the legal conclusion is clear: the Constitution stipulates that jurisdiction is exercised ‘in accordance with the specific law,’ while this law divides competences between the Constitutional Chamber in The Hague and the Constitutional Court in Pristina.
For this reason, he argues that the law has not amended the Constitution, but has defined the jurisdiction in greater detail, as permitted by the Constitution itself.
A decision, order or judgment of the Specialist Chambers will continue to be reviewed by the Constitutional Chamber in The Hague. Conversely, the constitutionality of this law, adopted by the Assembly of the Republic of Kosovo, will, under Article 23, be reviewed by the Constitutional Court of the Republic of Kosovo in Pristina.
“This is the fundamental difference.
Therefore, the law must be defended legally, institutionally and publicly. We will be here to defend it and to see its effects,” MP Gruda concluded.
