Lloga after The Hague ruling: Abolishing the Specialist Chambers is almost impossible

Krenar Lloga, former justice minister of North Macedonia, has conducted a legal analysis of how the Specialist Chambers were established and the obstacles that would arise if an initiative were launched to abolish them.

According to Lloga, the first-instance judgment has revived discussions in Kosovo and across Albanian communities about how the Specialist Chambers were created, who established them and whether they can be dismantled. He believes that the constitutional basis of this institution should be analyzed before political positions are taken.

He explains that the Specialist Chambers were not established through a resolution of the UN Security Council, nor were they modeled on the ICTY. They became part of the Constitution of the Republic of Kosovo through a vote in the Kosovo Assembly.

On June 26, 2015, the constitutional amendment establishing the Specialist Chambers failed to secure the required votes. In that vote, 75 MPs voted in favor, 7 against and 2 abstained. The matter was put to a vote again on August 3, 2015, when 82 votes were cast in favor, 5 against and 1 abstention.

Amendment XXIV was adopted through Decision No. 05-V-139, while Article 162, titled “Specialist Chambers and Specialist Prosecutor’s Office,” was added to the Constitution. Lloga emphasizes that this article is the constitutional foundation underpinning the institution.

In his analysis, the former minister explains that Article 144 of the Constitution does not allow constitutional amendments to be adopted by a simple parliamentary majority alone. An amendment simultaneously requires the votes of two-thirds of all members of the Assembly, meaning at least 80 out of 120, as well as two-thirds of the MPs holding guaranteed seats for non-majority communities, namely at least 14 out of 20. This must include the votes of at least 4 Serb MPs.

Lloga recalls that, following the challenge to the 2015 vote, the Constitutional Court found that Amendment XXIV had been adopted in accordance with the special majority required under Article 144(2). Consequently, the Specialist Chambers were not established merely with 82 votes, but through a double constitutional majority that also included representatives of non-majority communities.

This means that any future attempt to amend or repeal Article 162 would once again require the same special support. Even if there were broad political consensus, at least 14 votes from the 20 MPs representing non-majority communities would be needed. Without this majority, the constitutional amendment could not be adopted.

Addressing the court’s structure and avenues of appeal, Lloga stresses that Article 162 places the Specialist Chambers “within Kosovo’s justice system.” Their structure, operation and jurisdiction are defined by this article and Law No. 05/L-053.

This law provides not only for a first-instance trial panel, but for a complete system comprising the Chamber of the Basic Court, the Chamber of the Court of Appeals, the Chamber of the Supreme Court and the Specialist Chamber of the Constitutional Court for constitutional matters.

For this reason, according to Lloga, the first-instance ruling does not mean the end of the proceedings. The legislation allows an appeal to be filed and defines the powers of the Court of Appeals Panel. Under the circumstances stipulated by law, the powers of the Supreme Court and extraordinary legal remedies may also be used.

For cases already being handled within this system, the main procedural path is through appellate remedies, particularly the Court of Appeals. At this stage, the evidence, the standard of individual responsibility, possible factual and legal errors, the reasoning behind the judgment and respect for the rights of the defense are all important.

The analysis also addresses the Court’s obligations toward the state of Kosovo and Kosovo’s responsibilities toward this mechanism. Lloga emphasizes that the architecture of the Specialist Chambers is based not only on Kosovo’s legal and constitutional acts, but also on the Republic of Kosovo’s international agreements and commitments with the European Union.

On April 14, 2014, Kosovo and the European Union signed the agreement on the deployment of the European Union Rule of Law Mission in Kosovo, EULEX. This document created the basis for the mission’s presence and exercise of powers in Kosovo, and it was later supplemented and extended through other agreements.

Also on April 14, 2014, the Republic of Kosovo and the European Union signed an agreement on Kosovo’s participation in the work of the Specialist Chambers and the Specialist Prosecutor’s Office. From a legal perspective, it established the basis for cooperation in the operation of the mechanism, including administrative, financial and technical support.

As part of this cooperation, the European Union undertook to support the activities of the Specialist Chambers, while the Republic of Kosovo committed to ensuring the institutional and legal conditions necessary for the implementation of their mandate. These agreements did not supersede the Constitution of Kosovo, but were incorporated into the international cooperation framework underpinning the institution’s work.

On December 15, 2015, the Council of the European Union adopted a decision establishing the EU Office for the Support of the Specialist Chambers and the Specialist Prosecutor’s Office. This decision enabled funding and support from the EU’s common budget. The mandate and funding were later extended through other decisions of the Council of the EU.

Consequently, Lloga believes that any initiative to alter this mechanism must take into account not only Kosovo’s constitutional procedure, but also the political and legal consequences related to international agreements and commitments.

In conclusion, he says that changing the constitutional structure of the Specialist Chambers is theoretically possible, but remains extremely difficult, or almost impossible, from a political and legal perspective. This is because of the requirement for a qualified two-thirds majority, including the votes of MPs representing non-majority communities and the votes of at least 4 Serb MPs.

For this reason, according to Lloga, the public debate in Kosovo should move away from efforts to dismantle the Court and focus instead on the legal defense challenges being pursued within the current system of the Specialist Chambers.