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10.2.2017

The Ombudsperson addresses the referral to the Constitutional Court regarding the Law on Minor Offence

The Ombudsperson has addressed the referral today to the Constitutional Court (CC) for the annulment of Article 55, paragraphs 4–5, and Articles 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, and 68 of Law No. 05/L-087 on Minor Offences, and for the immediate suspension of these provisions pending the final decision of this Court.

The reason why this referral has been addressed to the Constitutional Court by the Ombudsperson has to do with the fact that the aforementioned Law overrules the principle of adjudication of minor offence cases by respective courts, by delegating the power to administrative and executive bodies to adjudicate and set sanctions on series of minor offence cases. Decisions of these bodies are subject to only a limited form of judicial control.

This delegation of adjudicatory powers to administrative and executive bodies comprises violation of the right to a fair trial before an independent tribunal, as guaranteed by Article 31 of the Constitution of the Republic of Kosovo and Article 6 of the European Convention on Human Rights.

Delegation of power has two key problems: administrative and executive bodies are not independent from the Government and judicial control of bodies’ decisions is done by the Administrative Matters Department of the Basic Court of Pristina, which does not have full jurisdiction to review all factual and legal claims in the case presented.

Jointly with the main referral the Ombudsperson has requested imposition of interim measure, actually immediate suspension of contested provisions, until the final decision of the Constitutional Court.

The Ombudsperson draws attention that, in the absence of interim measure, by the time Constitutional Court reaches its final decision, there is a substantive risk that operation of “bodies on minor offence” will impose punishments on accused persons without ever granting them access to an independent tribunal. In order to prevent the constitutionally questionable operation of “bodies on minor offence,” setting of interim measure on suspension of contested provisions, is necessary.

The referral in its full form, as has been addressed today to the Constitutional Court and has been distributed to media, is published on OI official web page.
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