Pristina municipality wins case in Constitutional with MAPL and MINT

The bias states that through the suspension of Pristina's municipality decisions, through conflicting acts, MAPL and MINT have not exercised the competence of administrative control in line with the provisions of the Constitution, the European Charter for Local Self-government and applicable law.

Full notice of the Constitutional Court:

The Constitutional Court of the Republic of Kosovo has published the Act in cases of KO 159/21 and KO 160/21, with Pristina's Pristina Pristina Pristina architer, based on paragraph 4 of Article 113. [Juridication and Authorised Pals] have called for assessing the constitutionality of the conflicting acts of the Ministry of Management of Local Power and the Ministry of Industry, Intervention and Trade (i) “report on the legality of the Municipal Act no respectively. 020-558/17 of the Ministry of Local Power Management of July 12th 2021”, in terms of “confirming the legality of Pristina Community Act No. 5133 of the Ministry of Industry, Intervention and Trade on July 9th 2021”; and (ii) “Report on assessment of the legality of Act Municipal No. 020-558/10 of the Ministry of Management of Local Power on July 8, 2021” regarding “confirms the legality of Pristina Community Act No. 6077 of the Ministry of Industry, Undertaking and Trade of July 7, 2021”.

The court, unanimously, has decided to: (I) State acceptable requirements; and state that: (II) in the case of KO159/21 (i) “The report on the legality assessment of the municipal act. July 12th 020-558/17] 2021” of the Ministry of Local Power Management in connection with (ii) “firming the legality of the Pristina municipality act. On July 9th, 2021” of the Ministry of Industry, Trade and Trade are not compatible with Article 2 paragraph 12 [Local State], paragraphs 1 and 3 of Article 123 [General Principles] and paragraphs 2, 3 and 7 of Article 124 [The Organisation and Function of Local Self-Government] Constitution of the Republic of Kosovo; (III) in the case of KO160/21 (i) “Report on assessment of the legitimacy of the municipal act. July 8th 020-55810) 2021” of the Ministry of Local Power Management in connection with (ii) “firming the legality of the Pristina municipality act. July 7, 2021,<89> The Ministry of Industry, Undertaking and Trade is out of harmony with Article 2 article 12 [Local State], paragraph 1 and 3 of Article 123 [General Principles] and paragraph 2, 3 and 7 of Article 124 [The Organisation and Function of Local Self-Government] the Constitution of the Republic of Kosovo, and as such, it is declared invalid.

The indictment initially explains that on June 16, 2021, the Pristina Community Assembly, through two (2) separate decisions, had approved the Communist Chairman's proposal for exchange of real estate with private persons owned real estate, with the goal of implementing the regulatory plan “the new party East”, with a destination for building schools, kindergartens and green spaces. Based on Article 81 (binding observation of legitimacy) of Law No. 03L-040 for Local Self-government, decisions were handed over to the Ministry of Management of Local Power (MAPL) for the procedure of controlling their legitimacy. MAPL had forwarded them to the Ministry of Industry, Intervention and Trade (MINT) for the assessment of their legitimacy, while MINT through two separate acts, “confirms the legality of the Pristina municipality's act” respectively. 6077] and [r. July 7th and July 9th 2021, 5133 had announced, respectively, The MAPL that the municipality's actions should be suspended and not produce legal consequences until this issue is addressed by the Strategic Investment Interministerial Commission defined in the Strategic Investment Law. As a result, MAPL through two acts, respectively, “raports for assessing the legitimacy of municipal acts”, [nr. 020-558/10] and [r. July 8th and July 12th 2021, respectively, had announced the municipality regarding MINT's announcement, failing to assess the legality of relevant acts, as is specifically required through Article 81 (binding provision of legitimacy) and 82 (The procedure for reviewing the legality) of the Law on Local Self-Government, while also unable to enable the financial assessment of the Community's decision to exchange real estate from the Ministry of Finance, Labour and Transference (MFPT), with the reason that there was no confirmation of the legality of the municipality's decisions on MAPL.

The Pristina municipality rejected the upper acts before the Court, claiming that the same violates the powers of the municipality defined with articles 12 [Local State], 123 [The General Principles] and 124 [Cultaining and Functioning of Local Self-Government] of the Constitution and the applicable laws of the Republic of Kosovo, respectively, Article 81 (binding provision of legitimacy) of the Law for Local Self-Government, because the MAPL did not assess the legality of the Comun decisions within the set legal deadline and announcing the suspension of their implementation, had been unable to exercise its competencies precisely with the provisions of the Local Self-rule Law.

In addressing Pristina's Community claims, the Court first clarified general principles regarding local self-government under the Constitution, the European Charter for Local Self-government, the Vendic Commission's relevant opinions, the laws in force of the Republic of Kosovo, as well as the Constitutional Court's judicial practice. The court, based on articles 12, 123 and 124 of the Constitution, reiterated that (i) the fundamental territorial units of local self-government in the Republic of Kosovo are municipalities and their competencies are regulated by law; (ii) municipalities have competencies <x0-vetanic”, the “expanded” and the “delegates”; and (ii) the administrative revision of municipal acts by the central authorities in their jurisdictions, limited to ensuring compliance with the constitution and the constitution. Moreover, based on these constitutional provisions, the Court stressed that the activities of the local self-government bodies are based on Constitutions and laws and respect the European Charter for Local Self-government. The latter, among other things, determines that (i) local authorities, within the limits of the law, will have the complete discretion to exercise their initiative on any issue that is not excluded from their competence and is not assigned to any other authority; (i) the competencies entrusted to local authorities, normally must be complete and exclusive, and they cannot be undermined by any other authority, central or regional, except by law; and (i) any administrative control over the local authorities can be exercised only by means of the forms or by the constitution.

The court also reiterated that local self-government is of such importance in constitutional order that the constitution (i) has established these guarantees, among other things, in its Founding Deposit; (i) has defined the European Charter for Local Self-Government; and (ii) with the aim of ensuring the protection of these guarantees, in its Article 113, it has given municipalities direct access to the Constitutional Court, in terms of authorised parties, to counter the constitutions of the laws or acts of Government, which violate the municipal responsibilities of the municipality, in the municipality, in the case or law, that is affected.

In line with the high assurances of the Constitution and the European Charter for Local Self-Government, and the reference of the same in the obligation to implement these guarantees both through and according to applicable laws, the Court reminded that, based on Article 17 (self-government recommendations) of the Law for Local Self-government, municipalities have full and exclusive “competencies in terms of local interest, respecting the standards specified in the applicable legislation, including “The exploitation of land and development >3). The community exercising this responsibility, also based on Law No. 06/L-092 for the Exploitation and Exchange of the Communist Realty Property had decided to exchange private persons' real estate for public interest. In this context, based on Article 81 (binding law enforcement) of the Law for Local Self-Government, the Pristina Community had submitted it for a consideration of legitimacy two (2) its decisions in the MAPL. Net 81 (binding law enforcement) and 82 (Procedure to review the Law for Local Self-Government clearly defines the term, obligation and procedure that must be followed in the context of the review of legitimacy, forcing the presiding authority, respectively, to assess the legality of the act, the procedure to be followed in case the act is deemed illegal, enabling the presiding authority to use legal means in the regular courts in the event that the relevant municipality does not reexamine the decision, and also the precise authority the overseer cannot recommend the execution of municipal decisions. The indictment explains that this is the case through controversial MAPL and MINT acts.

In this direction, the Act of Justice stresses that only fair courts have constitutional and legal license to order the suspension of implementation of a Communist Assembly decision in accordance with applicable legislation. Consequently, central-level institutions have no authorisation from the Constitution and the law to rule out the decisions of the Municipal Assembly, enabling the continuation of the legal procedures from the relevant municipality in line with the obligations of the Law on Local Self-Government and the Law on Exploitation and Exchange of the Community's Palmy Property.

Consequently, in concrete circumstances, based on high constitutional principles, respectively, articles 123 and 124 of the Constitution, under which, among other things, (i) local self-government is guaranteed by Constitution and regulated by law; and (i) any administrative review of municipal acts by central authorities in the field of their competencies is limited to ensuring compliance with the constitutions and law, Action finds that through the suspension of Pristina's decisions through acts of contests, through cases of contesting, MAPL and MINT have not exercised the competence of administrative control in line with the provisions of the Constitution, the European Charter for Local Self-government and applicable law.