REI'IJBI.lKA E KOSOVt�s - PElIYliilllKA ({OeOBO - REPUBLIC OF KOSOVO GJYKATA KlTSHTETITESE YCTABHH CY.lI. CONSTITUTIONAL COlTRT Pristina, 30 March 2011 Ref. No.: AGJ 107/11 JUDGMENT in Case No. KO 29/11 Applicants Sabri Ha miti and other Deputies Constitutional Review of the Decision of the Assembly of the Republic of Kosovo, No. 04-V-04, concerning the election of the President of the Republic of Kosovo, dated 22 February 2011. TIlE CONSTITUTIONAL COURT OF THE REPUBUC OF KOSOVO composed of Enver Hasani, President Kadri Kryeziu, Deputy-President Robert Carolan, Judge Altay Suroy, Judge Almiro Rodrigues, Judge Snezhana Botusharova, Judge Ivan Cukalovic, Judge Gjyljeta Mushkolaj, Judge and Iliriana Islami, Judge Applicants 1. The Applicants are 25 (twenty-five) Deputies from the Democratic League of Kosovo ("LDK") and 9 (nine) Deputies from the Alliance for Future of Kosovo ("AAK") (see Appendix A), represented by Mr. Sc. Vjosa Osmani. J" Challenged decision 2. The decision challenged by the Applicants is the Decision of the Assembly of the Republic of Kosovo (hereinafter: the "Assembly"), No. 04-V-04, concerning the election of the President of the Republic of Kosovo, Mr. Behgjet Pacolli, held at the extraordinary session of the Assembly of 22 February 2011. Subject matter 3. The subject matter of the Referral is the assessment by the Constitutional Court of the Republic of Kosovo (hereinafter: the "Court") of the Constitutionality of the decision of the Assembly, by which, Mr. Behgjet Pacolli, was elected the President of the Republic of Kosovo. 4. The Applicants contest the constitutionality of the procedure for the election of the President of the Republic of Kosovo as applied in the extraordinary session of the Assembly held on 22 February 2011, alleging a violation of Article 86 [Election of the President] of the Constitution of the Republic of Kosovo (hereinafter: the "Constitution"). 5. The Applicants, in particular, claim that Article 86, paragraphs (4), (5), and (6) of the Constitution has been violated in view of the lack of the necessary quorum during the vote, lack of any opposing candidate and the interruption of voting during the election procedure. Legal basis 6. Article 113.5 of the Constitution, Article 42 of Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo of 16 December 2008 (hereinafter: the "Law") and Rule 56 (1) of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo (hereinafter: the "Rules of Procedure"). Proceedings before the Court 7. On 1 March 2011, the Applicants submitted the Referral to the Court. 8. On 2 March 2011, pursuant to Rules 8 and 33 of the Rules of Procedure, the President, by Order No.GJR. 29/11 of 2 March 2011, appointed Judge Iliriana Islami as Judge Rapporteur. On the same date, pursuant to Rule 9 the Rules of Procedure, the Deputy­ President of the Court, by Order No.KSH. 29/11, appointed the Review Panel composed of Judges Snezhana Botusharova (Presiding), Ivan Cukalovic and Enver Hasani. 9. On 3 March 2011, the Referral was communicated to the President of the Assembly, requesting his response. On the same date, pursuant to the Rules of Procedure, the Referral was communicated also to the President of the Republic of Kosovo and the International Civilian Office, as interested parties to the case. 10. On 8 March 2011, the Court requested the Applicants to submit additional documents, pursuant to Rule 35 (2) of the Rules of Procedure. 11. On 10 March 2011, the President of the Republic of Kosovo, Mr. Behgjet Pacolli, submitted his reply to the Applicants Referral. 12. On 11 March 2011, the President of the Assembly of the Republic of Kosovo, Mr. Jakup Krasniqi, submitted only the Decision on the election of the President, the Minutes and 2 the Transcript from the election of the President and the Government held on the extra ordinary session on 22 February 2011. 13. On 17 March 2011, the Review Panel deliberated on the Report of the Judge Rapporteur and made a recommendation to the Court on the admissibility of the Referral. 14. On 28 March 2011, the Court deliberated and voted on the case. Summary of the facts 15. On 21 February 2011, the President of the Assembly summoned the Deputies for an extraordinary session to be held on 22 February 2011. On the agenda for the extraordinary session appeared, amongst other issues, the election of the President of the Republic of Kosovo. 16. The only proposed candidate running for the office of President of the Republic of Kosovo was Mr. Behgjet Pacolli. 17. During the voting, the following Opposition Parties did not participate: LDK, AAK, and Vetevendosja. As a result, only 67 (sixty seven) Deputies were present. 18. After the first voting round, the President of the Assembly declared that 67 (sixty seven) Deputies were present and that, out of those 67 (sixty seven), 54 (fifty-four) deputies had voted in favour. 19. The Assembly then held a second round, whereafter the President of the Assembly declared that out of the 67 (sixty-seven) Deputies present, 58 (fifty-eight) voted in favour. 20. Thereafter, the President of the Assembly announced a third round of voting. However, the Democratic Party of Kosovo (PDK) requested a break, which was initially refused by the President of the Assembly. 21. After the break, the third round of voting was held, whereafter the President of the Assembly declared that, out of the 65 (sixty-five) Deputies, 62 (sixty-two) voted in favour. However, the Commission, which chaired the election procedure, declared that out of 67 voting ballots in the ballot box, 62 were in favor, 4 against, and one invalid. 22. After the third round of voting, the President of the Assembly, Mr. Jakup Krasniqi, conclude that Mr. Behgjet Pacolli was elected President of the Republic of Kosovo. Applicants' arguments i. Lack of quorum in order to enable the election of the President 23. The Applicants claim that, according to Article 86(4) of the Constitution providing: "The President of the Republic of Kosovo shall be elected by a two thirds (2/3) majority [of the votes] of all deputies of the Assembly", the two thirds (2/3) majority of 120 (one hundred and twenty) deputies is 80 deputies, which is the required quorum needed to hold an election of the President. However, during the Extraordinary Session of the Assembly, in the firstvoting round, only 67 deputies were present, meaning that the necessary quorum was never reached in order to initiate the voting procedure for the President. Despite this, the voting took place without a quorum. 24. According to the Applicants, the lack of quorum was evident even in the second voting round, where only 67 (sixty seven) deputies were declared present. 3 25. In the third voting round, only 65 (sixty-five) deputies were declared present and the President of the Assembly, concluded that Mr. Pacolli, receiving 62 votes, was elected as the President of the Republic of Kosovo. 26. In the Applicants' opinion, in all, throughout the voting procedure for the election of the President, the necessary quorum of two thirds was not achieved or complied with, which is in breach of Article 86-4 of the Constitution. 27. Furthermore, the Applicants claim that the procedure is contraryto how the President of the Republic of Kosovo has previously been elected. 28. They, further, argue that Article 51 of the Rules of Procedure of the Assembly clearly specifies that: ''The Assembly has a quorum, when there are more than half of the Depu ties present in the Assembly" and that "Decisions of the Assembly sessions are valid only if when these were taken, when more than half of the Deputiesin the Assembly were present." Furthermore, the Rules of Procedure of the Assembly provide that "Laws, decisions and other acts of the Assembly are considered to be adopted, if the majority of the Deputies are present and voting." However, the Rules also provide that "An exception is made in cases, when the Constitution of the Republic of Kosovo provides otherwise." In the view of the Applicants, it is clear that, regarding the necessary quorum in the case of the election of the President of Kosovo, the Constitution foresees otherwise, by requiring 2/3 of all the deputies of the Assembly. 29. The Applicants further hold that the Rules of Procedure of the Assembly, where the decision-taking with 2/3 is provided, are the ratification of international agreements, the dismissal of the Ombudsperson, the extension of a state of emergency for more than 150 days, the adoption of the Rules of Procedure of the Assembly, etc. The Applicants claim that, when the Assembly had to decide on any of the above mentioned issues, the vote should not have taken place, until a confirmed quorum of 2/3 of all deputies was present. As an example, the Applicants stated that, in the session of the Assembly of 6 September 2010, after the President of the Assembly confirmed that 72 deputies were present, he continued with the agenda of the day, which, in item 4, included the ratification of the Agreement between the Government of Kosovo and the World Bank. According to Article 18.1 (3) of the Constitution, ratification of international agreements must be made with 2/3 of all the deputies of the Assembly. By respecting this procedure, in the session of 6 September 2010, the President of the Assembly, after stating that there was no quorum, postponed it for the next available plenary session. Similarly, in a session in 2009, the Assembly proceeded with the ratification of an Agreement on the acquisition of a loan between the Republic of Kosovo and the International Bank for Reconstruction and Development (IBRD), as well as the Memorandum of the Treasury Mission of the World Bank, only after 81 deputies were declared present in the Assembly, i.e.