The Kosovo Law Institute (KLI) has announced that it will initiate the amendment and supplementation of the Criminal Code of the Republic of Kosovo, with the aim of making the failure to implement the decisions of the Constitutional Court a criminal offense.
In an interview with Ekonomia Online, senior researcher at IKL, Gzim Shala, said that this initiative comes in response to the continued disrespect of the decisions of the Constitutional Court and the need to strengthen the rule of law.
"Yes, initially, such an initiative from what we have announced as IKL represents a first action, the initial action for notifying the Assembly of the Republic of Kosovo for the initiation of such an initiative, which initiative is based on the Constitution of the Republic of Kosovo and the Law on Legislative Initiatives. The reasons, that is, why we raised this issue have to do with two issues: which is the implementation of the decisions of the Constitutional Court and the incrimination of the actions of political actors who are in power through actions that violate the political competition", said Shala.
He explained that the Criminal Code currently provides for the non-implementation of court decisions as a criminal offense, but this, according to him, does not clearly include decisions of the Constitutional Court.
"What does this mean? It means that initially in the first aspect, regarding the implementation of court decisions, the Criminal Code of the Republic of Kosovo has incriminated the non-implementation of court decisions as a criminal offense. However, the language and the way in which that norm is constructed and the institutional constitutional system itself in Kosovo show that we are dealing with decisions of regular courts and not those of the Constitutional Court," he emphasized.
According to Shala, in a democratic country, it is not foreseen that the implementation of the decisions of the Constitutional Court would require criminal measures, as it is assumed that the authorities implement it without a criminal mechanism.
"The reason, that is, why it has been incriminated in this form is because in a democratic country it is not thought that criminal measures are needed to implement a decision of the Constitutional Court, because it is assumed that the authorities implement it without a criminal mechanism. However, from what we have seen repeatedly, we have seen that in the case of Kosovo, the need has arisen to incriminate this criminal offense so that the constitutional power of the judgments of the Constitutional Court is greater and implemented in practice," he said.
He added that the second aspect of the initiative is related to equality in political competition.
"The second aspect is that it is very problematic to develop a democratic and equal competition if an actor, a political party holds the ministerial position, the position of prime minister, the position of mayor, etc., and by using public powers and money creates a disadvantage in relation to other subjects and this then creates an unequal competition which is one of the problems that then also affects democracy itself. For this reason, through these two amendments we attempt to address these two issues through a legislative initiative by the citizens and then for the issue to be addressed in the Assembly of the Republic of Kosovo", declared Shala.
Regarding further procedures, he announced that they are currently in the preparatory phase and will soon begin collecting signatures.
"We have formally only notified the Assembly and currently, that is, we are in the preliminary preparations phase regarding this initiative and we expect, that is, to very soon start contacting various interest groups in order to collect the necessary signatures and then it will be up to the next Assembly to review this draft law. Regarding the forms of this draft law, we have recommended the form in which we ourselves have written the necessary changes to the Criminal Code of the Republic of Kosovo and then it will be up to the next Assembly to review the addition and amendment of the Criminal Code of the Republic of Kosovo", he said.
Commenting on recent political developments and accusations of non-implementation of Constitutional Court decisions, Shala said that such cases have occurred before.
"Now, it is true that we have seen various accusations, but not only in this case but also in past cases we have seen that a certain decision of the Constitutional Court has not been implemented, which as I emphasized earlier, is equivalent to the Constitution of the Republic of Kosovo itself. And there have been cases, we know even last year, that the Constitutional Court has issued a specific judgment that has emphasized that the judgment of the Constitutional Court has not been implemented," he said.
He emphasized that the deliberate non-implementation of Constitutional Court decisions poses a serious problem for the rule of law.
"I am mentioning it once again, in a country where the rule of law is not foreseen that the issue of implementing the judgments of the Constitutional Court will be discussed. And when we talk about non-implementation of the judgments of the Constitutional Court, we are not talking about issues of certain delays due to technical aspects, etc., which may unjustly penalize certain actors, but intentional non-implementation of a decision of the Constitutional Court. And in this situation, taking into account that such a norm should probably not really exist in a country where the rule of law is, but taking into account what has happened in practice, the need has arisen, that is, for these two issues to be addressed through supplementing and amending the Criminal Code", added Shala.
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