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23.6.2015

NOTIFICATION REGARDING PUBLICATION OF TWO ANALYSES OF THE CONSTITUTIONAL COURT DECISIONS REGARDING THE CASE KO22/15

Prishtinë, 23 June 2015 –The Ombudsperson Institution has published today on its official website a detailed analysis of two latest Constitutional Court’s decisions regarding the Case KO22/15, on which occasion, the Ombudsperson for the second time has requested repeal of the Decree No.DKGJK-001-2014 of the President of Republic of Kosovo concerning confirmation of mandate extension for Constitutional Court international judges (see here).   


Two decisions have been issued by the Constitutional Court regarding the Case KO22/15:


1) Decision not to recuse President Hasani from participation in the Case procedure;


2) Resolution on inadmissibility of Ombudsperson’s Referral regarding abrogation of the President’s Decree.  
Analyses conducted by OI which were made public today denotes a set of long deceitfulness, professional, ethic and intellectual deficiencies on both decisions of the Constitutional Court, and those most gravest are detailed in the following:


1.    Throughout the entire Resolution on Inadmissibility, a distressing tendency of the Court is exposed to mention authorities, who that not only don’t support Court’s claims but oppose them decidedly. For example, Court claims that Ombudsperson Referral “is not within the scope of [Article 113, paragraph 2 of the Constitution] . . . (see Case KO97/12, the applicant: Ombudsperson, Judgement of 12 of April 2013)”, since “the applicant fails to ascertain any violation of a specific constitutional provisions related to his human rights and fundamental freedoms or of a person or a group of persons” (Resolution, paragraph 29 and 31). But, the Judgement of Constitutional Court itself in the Case KO97/12, which is cited by the Court, ascertains exactly the opposite: “The Court considers that the language of the Article 113.2 of the Constitution is clear and unequivocal, that authorization granted to the Ombudsperson to initiate Referrals to the Constitutional Court is not limited according to Chapter II of the Constitution [Basic Human Rights and Freedoms]” (Case KO97/12, Judgement, par. 110, increased emphases). A logical question can be made: Has the ruling KO97/12 issued by the Court, been read by them prior citing or they simply thought that the readers will not control themselves this citation?


2.    Jointly with main Referral for abolition of the Presidents Decree concerning mandate extension for Constitutional Court international judges in Case KO22/15, the Ombudsperson have lodged another request with the Constitutional Court concerning disqualification of the President of the Court, Mr. Enver Hasani from participation in the case procedure. Ombudsperson’s request was very well reasoned.    


But, the Court has decided to completely remain speechless regarding this issue, pretending that the Ombudsperson did not submit a single prove or evidence: “the Court evaluates that the applicant’s request is unreasoned, irrelevant and unjustified... Thus, the Court rejects the applicant’s request” (Case No. KO22/15, Decision, 17 April 2015, Request for disqualification of the President of the Constitutional Court of the Republic of Kosovo). Unfortunately for the Court, reasoned and justified Ombudsperson’s request, published on Institution’s webpage from the very day it has been lodged (see here) and accordingly, the fact which cannot be concealed is that Court’s claims that the Ombudsperson’s Referral was unreasoned and unjustified, are pure lies.

3.    The Court continues with its tradition of concealing official documents. Paragraph 7 of the Resolution for not disqualification of president Hasani, alleges that: “On the 17th of April 2015, the Court obtained a declaration from President of the Court, in accordance with the regulation 7.4 of the “Regulation of Work”. According to the Constitution of the Republic of Kosovo, Article 132, par. 3 (“Every organ, institution or other authority exercising legitimate power of the Republic of Kosovo is bound to respond to the requests of the Ombudsperson and shall submit all requested documentation and information in conformity with the law”), the Ombudsperson has requested access on the President Hasani’s statement but the Court has refused this request, specifying it as “confidential”.


Based on this kind of “confidentiality”, Constitutional Court has also refused to submit to the Ombudsperson the request of judge Carolan for recusal from Case Referral KO97/12. Constitutional Court’s refusal to make public President Hasani’s statement, denotes again that the Court is ready even to hide official proves in order to serve to its interest. Concealing of evidence during official procedure, including investigation on the procedure with the Ombudsperson Institution, is a punishable deed according to the Criminal Code of Republic of Kosovo, article 394 (“Obstruction of evidence or official proceedings”).

4.    Furthermore, Constitutional Court has conducted legal and constitutional violations through making efforts for limitation of competencies of the Ombudsperson to lodge cases in the Constitutional Court. This is in direct contradiction with Article 113, paragraph 2 of the Constitution, which clearly determines that “the Ombudsperson is authorized to refer the noncopatibility issue... of President’s Decree ...with Constitution”.

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