The Decani Monastery's legal saga, Church receptions, and government stance

Constitutional Law Professor Arsim Bajrami says there is no concrete, criminal or any sanction, in law or Constitution, for subjects refusing to implement Constitutional Court decisions.

Constitutional Court: State Prosecution Take Action

On 24 September, Kosovo's Constitutional Court has sent a letter to State Chief Prosecutor Alexander Lumez, through which it informed him of the provision of the Abnegation in connection with the act, with which the Constitutional Court in 2016 ruled that the Decani Monastery owned 24 hectares of land and forest.

In the letter to the chief state prosecutor, the Constitutional Court stresses that it “does not compensate for the evaluation of responsibility for failing to implement the Supreme Act on the grounds of the responsible authorities” and has said that “is up to the State Prosecutor to take further action, according to legal authorisations, based on the Penal Code and the Penal Procedure of the Republic of Kosovo”.

Free Europe Radio has been addressed to the State Prosecutor with questions whether he has taken specific steps or will take steps that have been requested by the Constitutional Court. But until the publication of this text, this prosecutor has not returned an answer.

International Reactions

On October 31st, European Parliament rapporteur Violet von Cremon, after a visit to the Decani Monastery, has said the Kosovo government must implement the Constitutional Court's decision on the Decani Monastery.

The legacy of the Serbian Orthodox Church in Kosovo must be protected and enjoy full rights. Therefore, I call on the Government of Kosovo to implement the Constitutional Court's decision, long delayed, as rule of the law implies equal treatment of all”, Cromon has said.

This request has also been supported by Germany's ambassador to Kosovo, Jorn Rohde, who, through a Twitter post, has asked Kosovo institutions to implement the Constitutional Court for the Decani Monastery decision. He has stressed that the arbitrary application of rule of law is no way forward.

On September 24th, the chiefs of missions of France, Germany, Italy, the United Kingdom and the United States, through a joint statement have welcomed the Kosovo Constitutional Court's statement, saying it is disturbing that this court “is intended to remind executive institutions to ensure and implement rule of law in these more than delayed cases”.

Such demands have occurred for several years now.

Miftarian: Constitutional Court Initiative Without Legal Basin

Ehat Miftaraj, executive director of the Kosovo Institute for Justice in a conversation with Radio Free Europe, stresses that any normal state, which aspires to the basic principles of rule of law, applies to the Constitutional Court's decisions.

But, the Constitutional Court, according to him, after five years of its ruling, in pressure on the demands of international representatives, requires the State Prosecutor to take legal action, which has no basis. According to him, the Criminal Code and the Criminal Procedure Code clearly define that failure to comply with judicial decisions of regular courts paves the way for the State Prosecutor to initiate criminal procedures against persons or institutions that fail to implement those decisions of strict form. But, according to him, this is not in the case of constitutional court decisions.

The Constitutional Court is not a fair court and this provision is not valid for Constitutional Court decisions. Through pressure from international partners, the Constitutional Court has, in some way, obtained initiative, which, firstly, is not based on law and second, is extremely problematic to be implemented on the part of State Prosecutor”, Miftaraj says.

Bajrami: Sʹka organ responsible for implementation of Constitutional Court decisions

Constitutional Law Professor at the University of Pristina, Arsim Bajrami, who has been part of the group of experts who have compiled the Constitution of Kosovo, speaking of Radio Free Europe, explains that acts and decisions in general, which bring about the Constitutional Court of Kosovo, according to the country's Constitution, have binding effect, are irrevocable, are of strict form and executable.

According to him, this is the Constitutional Court's decision of 2016 that recognizes the right of the Decani Monastery for 24 hectares of land.

But he explains situations where these decisions remain unmet, as in the case of the Decani Monastery.

It (the constitution) simply stipulates that the Constitutional Court's decisions operate ʹerga omnes, act towards all. The state and other non-state parties -- citizens -- and other institutions must abide by this decision. A competent body that is responsible for implementing decisions is not determined, therefore, in the concrete case, that it has nothing to do with this issue, for example; police or security institutions. Also, it is not determined that the full responsibility for the Constitutional Court's decision is taken by the executive, who does enforce laws and other acts, but in a way, the entire state and state institutions are obliged to ensure full implementation of Constitutional Court decisions”, Bajrami says.

The diocese of Raska and Prizren, headquartered in Gracanica through a media communique on Monday, November 1st, has said that the Serbian Orthodox Church expects competent institutions to fully implement the Kosovo Constitutional Court's decision of 2016, with which the ownership of the Decani Monastery is confirmed on 24 hectares of land and forest around the monastery. The diocese has welcomed, as highlighted in the communique, the <x0 calls for the court's decision to be implemented and the church land to be registered in cadastre”.

Free Europe has been addressed to the Office of the Prime Minister of Kosovo, in question whether the Government of Kosovo is in favour or against implementing the Constitutional Court's decision regarding the 24 hectares of land and forest of the Decani Monastery.

This office has avoided answering this question, but in a written reply it has said that the Kosovo government will be fully engaged “to preserve the legitimate rights of the Decani Monastery, which is part of Kosovo's rich cultural mosaic. But even the monastery's religious leaders must do their part”.

“Dialogue with Orthodox clergymen in Kosovo is the only way to sustainable resolution”, says the Kosovo Prime Minister's Office's response.

Kosovo Prime Minister Albin Kurti, in May of this year, called on representatives of the Serbian Orthodox Church for dialogue, but the Diocese of Raska and Prizren had then declared that the talks would only be possible when the Constitutional Court's decision, 2016, concerning 24 hectares of the Decani Monastery, is carried out.

What is the conflict regarding the land of the Decani Monastery?

In 2016, Kosovo's Constitutional Court has ruled in favour of the Decani Monastery, or determined that 24 hectares of land belong to that monastery.

However, local power in Decan refuses to implement this Constitutional Court decision because, as it claims, that property is the property of social companies “Apico” and “Iliaria” and that it has never been of the monastery. Local authorities in Decani also believe that the Constitutional Court legalised Slobodan Milosevic's decision from 1997, when it decided to donate this property to the monastery.

At the helm of the Decani municipality is Union Ramosaj, who will also be mayor of this municipality for the next four years, given that in the 17 October local elections, he won as the Alliance's candidate for the Future of Kosovo.

REL tried to contact Ramos, but he wasn't available.

Shortly after the Constitutional Court had submitted the request to the State Prosecutor regarding the implementation of the decision on the ownership of the Decani Monastery on September 24th, the mayor of the Decani municipality, Union Ramosaj, has earlier told Radio Free Europe that it will not implement the Constitutional Court's decision and, therefore, has stated that municipal authorities have not changed their position not to accept the property registration for the Decani Monastery.

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Ehat Miftaraj stresses that political parties in Kosovo have lacked and continues to lack the political will to establish a monitoring mechanism for implementing Constitutional Court decisions.

The Penal Code and Criminal Procedure, last time, was adopted in 2019 and if they estimated that failure to comply with the Constitutional Court's decisions was a problem, then they could penalise such an act with the Criminal Code. This has not happened”, Miftaraj points out.

He adds that the only way to resolve the issue of implementing the Constitutional Court's decision on the Decani Monastery is to have political will on the part of all political parties and for this political will to be exercised against the Decani Community in order to implement this decision. /rel/