RESOLUTION ON INADMISSIBILITY

Transcription

1 REPUBUKA E KOSOVES - PEUYBJIHKA KOCOBO - REPUBLIC OF KOSOVO GJYKATA KUSHTETUESE YCTABHH CYLI: CONSTITUTIONAL COURT Prishtina, on 10 April 2018 Ref. No.: RK1209/18 RESOLUTION ON INADMISSIBILITY III Case No. KI142/17 Applicant Mentor Jashari Constitutional review of Decision AA. No. 34/ 2017 of the Supreme Court of 17 November 2017 CONSTITUTIONAL COURT OF THE REPUBLIC OF KOSOVO Composed of Arta Rama- Hajrizi, President Ivan Cukalovic, Deputy-President Altay Suroy, Judge Almiro Rodrigues, Judge Snezhana Botusharova, Judge Bekim Sejdiu, Judge Selvete Gerxhaliu- Krasniqi, Judge and Gresa Caka-Nimani, Judge. Applicant 1. The Referral was submitted by Mentor J ashari, from village Prekaz i Poshtem (hereinafter, the Applicant), who is represented by Hasan Jashari, a lawyer from Prishtina. 1

2 Challenged decision 2. The Applicant challenges Decision AA. No. 34/2017 ofthe Supreme Court, of 17 November 2017, which rejected as ungrounded the Applicant's appeal filed against the Decision ZL. A. No. 833/2017 of the Election Complaints and Appeals Panel (hereinafter, ECAP), of 12 November Subject matter 3. The subject matter is the constitutional review of the challenged Decision of the Supreme Court, which allegedly violated the Applicant's rights and freedoms guaranteed by Article 45 [Freedom of Election and Participation], Article 53 [Interpretation of the Human Rights Provisions] and Article 54 [Judicial Protection of Rights] of the Constitution of the Republic of Kosovo (hereinafter, the Constitution). Legal basis 4. The Referral is based on paragraph 7 of Article 113[Jurisdiction and Authorized Parties] of the Constitution, Article 47 of Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo (hereinafter, the Law) and Rule 29 of the Rules of Procedure of the Court (hereinafter, the Rules of Procedure). Proceedings before the Constitutional Court 5. On 29 November 2017, the Applicant submitted the Referral to the Constitutional Court of the Republic of Kosovo (hereinafter, the Court). 6. On 1 December 2017, the President of the Court appointed Judge Almiro Rodrigues as Judge Rapporteur and the Review Panel composed of Judges Ivan Cukalovic (Presiding), Bekim Sejdiu and Selvete Gerxhaliu-Krasniqi. 7. On 8 December 2017, the Court notified the Applicant about the registration of the Referral and sent a copy of the Referral to the Supreme Court. 8. On 2 March 2018, the Review Panel considered the report of the Judge Rapporteur and recommended to the Court the inadmissibility of the Referral Summary of facts 9. The Applicant was on the electoral list of the political entity "Civic Initiative forty-one thousand" (hereinafter, the CI), as one of the candidates for the Municipal Assembly of Skenderaj (hereinafter, the MA Skenderaj). 10. On 22 October 2017, the local elections were held for the MA Skenderaj. 11. On 08 November 2017, the Central Election Commission (hereinafter, the CEC) announced (Decision 2232) the final election results for the MA Skenderaj, according to which the CI received 2 (two) mandates. The CEC allocated one mandate to the holder of the electoral list of the CI, while the second was 2

3 allocated to the female candidate who received the highest number the CI list. of votes on 12. On 9 November 2017, the Applicant filed with the ECAP an appeal, alleging that the CI won a total of 908 votes, while he won a total of 256 votes, which was the highest number of votes for a candidate on the list who was not the holder of the list. However, the CEC allocated the second mandate to the female candidate on the list, who won a total of 64 votes. Therefore, he requested the ECAP to award him the second mandate. 13. On 12 November 2017, the ECAP (Decision ZL. A. No. 833/2017) rejected as ungrounded the Applicant's appeal. 14. The Applicant filed with the Supreme Court an appeal on the same grounds as in his previous appeal of 9 November On 17 November 2017, the Supreme Court (Decision AA. No. 34/2017) rejected as ungrounded the Applicant's appeal. Applicant's allegations 16. The Applicant claims that the decisions of the CEC, ECAP and the Supreme Court «violated his rights guaranteed by the Constitution, specifically Article 45 (...J based on Article 53 and 54 of the Constitution of the Republic ofkosovo». 17. The Applicant alleges that, as a candidate of the political entity CI, he won the second highest number votes and, accordingly, he should be awarded the second mandate for the MA Skenderaj. However, the CEC allocated this mandate to a female candidate with fewer votes, based on a 30% quota rule. 18. The Applicant requests the Court to annul the decisions of the Supreme Court and of ECAP, and to be assigned the mandate of a member of MA Skenderaj for the CI. Admissibility of the Referral 19. The Court first examines whether the Referral has fulfilled the admissibility requirements laid down in the Constitution and as further provided in the Law and foreseen in the Rules of Procedure. 20. In this respect, the Court refers to paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, which establish: 1. The Constitutional Court decides only on matters referred to the court in a legal manner by authorized parties. [...] 7. Individuals are authorized to refer violations by public authorities of their individual rights and freedoms guaranteed by the Constitution, but only after exhaustion of all legal remedies provided by law. 3

4 21. The Court also refers to Article 49 [Deadlines] of the Law which provides: The 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. 22. In that respect, the Court considers that the Applicant is an authorized party, has exhausted all legal remedies and submitted the referral within the prescribed deadline. 23. However, the Court further refers to Articles 48 [Accuracy of the Referral] of the Law, which establishes: In his/her referral, the claimant should accurately clarify what rights and freedoms he/she claims to have been violated and what concrete act of public authority is subject to challenge. 24. In addition, the Court takes into account Rule 36 [Admissibility Criteria] of the Rules of Procedure which foresees: (1) The Court may consider a referral if: (d) the referral is primafaciejustified or not manifestly ill-founded. (2) The Court shall declare a referral as being manifestly ill-founded when it is satisfied that: b) the presented facts do not in any way justify the allegation of a violation of the constitutional rights. 25. The Court recalls that the Applicant complains that «the second mandate belonging to the political entity CI was assigned to a female candidate with fewer votes than him, which is based on the 30% quota that he considers unfair and discriminatory». 26. The Court also recalls that the Applicant alleges that the decision of CEC, ECAP and Supreme Court violated his constitutional rights and freedoms guaranteed by Article 45 [Freedom of Election and Participation], Article 53 [Interpretation of Human Rights Provisions] and Article 54 [Judicial Protection of Rights]. 27. In that respect, the Court observes that Article 45 [Freedom of Election and Participation] of the Constitution establishes: "1. Every citizen of the Republic of Kosovo who has reached the age of eighteen, even if on the day of elections, has the right to elect and be elected, unless this right is limited by a court decision." 28. The Court also observes that Article 3 of Protocol NO.1 (Right to Free Elections) of the ECHR provides: 4

5 "The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature". 29. In that connection, the Court reiterates that the European Court of Human Rights (hereinafter, the ECtHR) held that the right provided by Article 3 of Protocol 1to the ECHR is not absolute; the Contracting States regulate the rights to vote and to stand for election by rules that are not in principle prohibited, that they have a wide margin of appreciation in this sphere. 30. However, it is for the ECtHR to determine "that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate" (see ECtHR cases Mathieu-Mahin and Clerfayt v. Belgium, Application no. 9267/81, Judgment of 1987,; Gitonas and Others v. Greece, Application No /91, Judgment of 1997). 31. At the outset, the Court considers that the right to vote guarantees the right of citizens, as bearers of sovereignty, to directly participate in the constitution of the state authorities. The right to vote is broader than the right to cast a vote. The right to vote also includes the right to actively participate in all election activities (nominating candidates, standing for election, objectively and impartially informing about candidates, parties and other political entities, as well as about their programs, control of elections, etc.) Actively casting a vote is just one of the election actions. 32. The Court recalls that the Applicant was one of the candidates on the list of political entity CI, who participated in local elections for the MA Skenderaj, held on 22 October In this regard, the Court notes that the CEC (Decision 2232) announced the final election results for the MA Skenderaj on 8 November 2017, and, in accordance with the applicable legal provisions of the Law No. 03/L-073 on General Elections, made the distribution of the won mandates. 34. The Court notes that the Applicant participated in the local elections in all phases of the electoral process, and that there was no court decision or decision of any another competent authority preventing him from exercising his passive right to vote, namely standing for election as a candidate of the list of the political entity CI. 35. In the same way, the Court notes that there is no decision of any competent authority that prevented the Applicant in any way from participating actively in the election by casting his vote. 36. The Court observes that the ECAP noted that «the appellant did not enclose any evidence in support to,appealing allegations and because no Polling Station was identified as station where any violation was committed». The ECAP considered «the appeal being general and without arguments of the facts and as such it was not convincing as it does not meet legal requirements provided 5

6 in Article 117 of the Law No. 03/-073 on General Elections». The ECAC, in absence of specific facts and satisfactory evidence, concluded that «the appeal subject of this review is ungrounded and without any argumente». 37. The Court also observes that the Supreme Court rejected as ungrounded the Applicant's appeal against the ECAPdecision. 38. In fact, the Supreme Court noted that «in accordance with Article 27 of the Law on General Elections (LGE), it is provided that each political entity's candidate list shall have at least thirty (30%) percentfemale candidates». The Supreme Court further considered that «the allocation of seats is 2 gained positions for the political entity "Civic Initiative" and one of these members shall be male and the other member shall be female». Then the Supreme Court found that «the compliance with gender quota entails representation of minimum 30% of females and since the representation is 50% in this specific case, it does not mean that it is in contradiction with LGE» The Court considers that the Supreme Court provided a reasoned response to all of the Applicant's allegations; and the Applicant does not present facts and arguments indicating that the challenged decision deprived him of the enjoyment of his right to free elections, as provided by Article 45 [Freedom of Election and Participation] of the Constitution or Article 3 of Protocol 1 to the ECHR. 40. Moreover, the Applicant does not show that the decision of the Supreme Court was in any way unfair or arbitrary. (See, mutatis mutandis, ECtHR case Shub v. Lithuania, No /06, ECHR, Decision of 30 June 2009). 41. In fact, the Court considers that all the Applicant's relevant arguments were properly heard and duly examined by the Supreme Court; that the material and legal reasons for the decision he challenges were presented in details and that, based on the above, the proceedings, viewed in their entirety, were fair and justified. 42. The Constitutional Court reiterates that it is not its duty to act as a court of fourth instance, in respect of the decisions taken by the regular courts. The role of the regular courts is to interpret and apply the pertinent rules of both procedural and substantive law. (See ECtHR case Garcia Ruiz vs. Spain, No /96, Judgment of 21 January 1999; see also Constitutional Court case KI70/11, Faik Rima, Magbule Rima and Bestar Rima, Resolution on Inadmissibility of 16 December 2011). 43. In conclusion, the Court considers that the Applicant has not substantiated his allegations on a violation of his constitutional rights under Article 45 of the Constitution in conjunction with Article 3 of Protocol 1to the ECHR. 44. Therefore, the Court finds that the Applicants' Referral is manifestly ill-founded on a constitutional basis and, in accordance with Rule 36 (1) (d) and (2) (b) of the Rules of Procedure, is inadmissible. 6

7 FOR THESE REASONS The Constitutional Court of Kosovo, pursuant to Article 113 (7) of the Constitution, Article 47 of the Law, and Rules 36 (1) (d) and (2) (b), and 56 (2) of the Rules of Procedure, in the session held on 2 March 2018, unanimously DECIDES I. TO DECLARE the Referral inadmissible; II. TO NOTIFY this Decision to the Parties; III. TO PUBLISH this Decision in the Official Gazette, in accordance with Article 20-4 of the Law; and IV. TO DECLARE this Decision effective immediately. Judge Rapporteur Almiro Rodrigues 7