September 2022

Balkans Group’s new policy report Constitution of Kosovo: A Comprehensive Review & Legal Analysis offers a thorough analysis of 21 constitutional issues, categorized into three groups:  the system of laws, the functioning of institutions, and the jurisdiction of the Constitutional Court. More than a decade after the adoption of the Constitution, this analysis seeks to yield an open and productive debate on the improvement of constitutional and legal provisions.

The adoption of the Constitution of Kosovo was a speedy process with limited public consultations. Its provisions reflect Kosovo’s efforts to build its constitutional foundation as a new state, and they enshrine fundamental principles and values. Since then, Kosovo has evolved and seeks to establish itself as functional and viable democracy, whose constitutional and legal provisions need improvements.

Throughout the years, constitutional gaps, institutional crises, and political controversies emerged. Those situations required frequently the interpretation of the Constitutional Court to solve ambiguities in several landmark cases. Despite the Court’s intervention, issues remain and need to be addressed through future constitutional and legal changes, to ensure clarity and preserve the principle of legality. The first step would be to ensure clear terminology of legal acts and a well-defined normative hierarchy.

The well-functioning of institutions is also imperative for overall legal and political certainty. Constitutional ambiguities and gaps brought uncertainties in practice over the years, especially related to the work of the Assembly, including its voting and decision-making procedures, the mandate of its deputies, the election, mandate, and the scope of powers of the President, and the Government, as well as gender representation in Kosovo’s institutions. Eventual amendments to the Constitution and relevant laws should improve current provisions to avoid institutional deadlocks and conflicts in the future.

Lastly, the Constitution is unclear about several aspects of the Constitutional Court’s work, the scope of its jurisdiction, and its methods for interpretation. Clarifying these matters is critical for the exclusive authority of the Constitutional Court to interpret the Constitution. It would also help to ensure consistency in the Court’s case law.

When considering constitutional changes, the limits to the amendment of the Constitution should also be taken into account. Even with no changes to the Constitution, the amendment of relevant laws may fill certain gaps. Any change to the Constitution must be reflected in other relevant laws to ensure constitutionality.

Constitutional and/or legal changes must reflect the Constitutional Court’s interpretation, Venice Commission’s opinions, and other countries’ best practices. This analysis explores a wide spectrum of options to strengthen rule of law, legal certainty, and institutional stability, thus the democratic functioning of the country.

Read the full report HERE.

This publication is supported by the Royal Norwegian Embassy in Prishtina. The views and analysis in this publication are solely of the Balkans Group and do not reflect the views of the donor.