26 February 26, 2015 – the reason of convening today’s Press conference by the Ombudsperson was disclosure of the fact that Constitutional Court judge, Robert Carolan, has recused himself from participation in the case procedure initiated by OI regarding mandate extension for Constitutional Court international judges. This has been revealed to us through a letter forwarded in person by judge Carolan on 13th of February 2015.
Through this letter he confirms decidedly that he did not participate in the case procedure. This issue (exemption of judge Carolan), the Constitutional Court has concealed in its ruling for the given case. Disqualification of judge Carolan in the case procedure does not comprise solely a procedural issue but disputes entirely the validity of the Court’s ruling. Without judge’s Carolan attendance the Court had not the necessary quorum from seven judges to bring the decision in this case and due to this, the Ruling of the Court for the inadmissibility of the case is void on the legal aspect.
Having in mind the invalidity of the Court Ruling, the Ombudsperson has lodged today a new inquiry for the abrogation of President Jahjaga Decree regarding mandate extension for Constitutional Court international judges.
Jointly with this inquiry another one has been lodged to the Constitutional Court demanding disqualification of presiding Judge Enver Hasani, from participation in this case referral.
EULEX Mission internal memo, published in magazine Prishtina Insight on 10 October 2014, confirms that President Enver Hasani has been consulted and agreed to bypass the Assembly for mandate extension to Constitutional Court international judges. Furthermore, in the interview conducted for the TV program, Betimi për Drejtësi on 17 December 2014, President Hasani himself admitted that he was on direct communication with the European Union representatives since October 2013, to ensure mandate extension for Constitutional Court international judges.
Considering these circumstances President Hasani could not be unbiased in this case and therefore OI has officially requested his disqualification in participating in the repeated request procedure.
On the other hand, disclosure of Judge Carolan recusal and failure to mentioned this fact in Constitutional Court Ruling constitutes at least reasonable suspicion that two judges signatories of this Ruling – President Hasani and reporting judge Arta Rama-Hajrizi have deceived the public keeping in secret the fact that the Court did not have the needed quorum to take decision on this matter.
There are many questions on which Constitutional Court should give respond to:
These questions have been addressed to the President Hasani, reporting judge Arta Rama-Hajrizi and three international judges: Carolan, Rodrigues and Botusharova-Doicheva.
Apart Judge Carolan, to whom Ombudsperson is sincerely grateful for the great cooperation till now, other judges have refused to give explanations for this situation, apart their constitutional and legal liability for cooperation with the Ombudsperson.
The fact that four Constitutional Court judges feel free to violate exactly the same constitution to which they have sworn to protect, indicates adequately the desperate position of the Judiciary in the Republic of Kosovo.
OI points out that disclosing of the fact that judge Carolan has recused himself from deliberation in our case, actually the matter is not only assessment of the constitutionality of the President’s Decree but deceitfulness of at least two Constitutional Court judges, signatories of the Case ruling, to accurately inform the public on Constitutional Court official decision.
A democratic society cannot function at all if its citizens cannot have trust on honesty and integrity of their highest state officials. Thus, when facing serious evidence that Constitutional Court judges could have falsify an official decision, keeping secret the fact that the quorum was lacking for decision rendering, than if accurate, it knocks the base of our democracy.
Regardless opinions about constitutionality or unconstitutionality of the President’s Decree, a fact is well known: in case President Hasani and judge Rama-Hajrizi, or even any other judge have conceive the public with Court’s decision, then resignation is the first thing and the least that should be done. Decisiveness of Judge Carolan’s claiming that he “was not part of the decision” in case, is evidence that has not been disputed from anyone from the Court till now.
OI stresses that the possibility to explain completely this issue has been provided to judges Hasani and Rama-Hajrizi, but they have refused it until now. Considering this fact, but others existence of which we might assume but need to be investigated, OI considers institutional reasoning of the Constitutional Court as necessary and mandatory as well as accountability of the each judge individually for citizens of this country and wide public opinion.
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