Albin cooked the pit of the new material Constitution, into the oven who would put it! ?

It says: Enver Hasani

Constitutional Order and High Betrayal

In all of Europe's criminal legislation, and not only, construction by the executive of a new material constitution, without the blessing of parliament and without following constitutional ways, constitutes criminal offence of high treason. This type of works usually falls into the special jurisdiction of courts or judicial troops with special jurisdiction for such acts. Not rarely do national constitutions themselves define citizens ' right to revolution when state organs or anyone in their name seeks and aims to overturn the established constitutional order. The example of the basic German Law is typical of this approach.

What has happened in Kosovo with two last year's agreements -- in no Balkan country -- and no longer leave it in other European countries -- would not have gone through without deep shock for both the authorities and the constitutional order itself. Why this has not happened in Kosovo! Perhaps another study is one that exceeds the limits of writing and of our interest.

Meaning of Material Constitution

Two elements of the material constitution are its distinctive quality in relation to other constitutions. The first is the normative material element, which consists of sanctioning a given configuration of power that reflects the power and relative organization of the given social group (people, nation, nation or people, religious sect, language group, class, and so on). A configuration like this happens every time one group or group manages to impose the political goal defined by the formal constitution in power or in a completely different and contrary manner. In each situation the group or group gives itself and the configuration of power a normic substance, as defined by the formal constitution, or a very other substance of constitutional norms, which is different and in absolute opposition to the formal constitution in power. This constitutes the second element of the material constitution, known as the essential content of the material constitution. The essential content of the material constitution shows who does and what are the reports between different levels of power; what is the role and position of the individual and the social group in society and so on. The essential content of the constitution is institutionalising the new relationship between the ruling (dominating) social forces and the (dominated) social forces.

Changes to the material constitution are not quick and do not concern the constitutional amendment. There may be constitutional amendments, but do not change anything in the country's material constitution and vice versa, there may be changes in the material constitution without touching the formal constitution. There is no difference in the material constitution whenever the political objectives of the first constitutional project, as well as the configuration of power between dominant and dominant forces, remain the same in relation to the form of political unity defined with the material constitution in force. Political unity concerns the political decision of a people with whom it determines the form of state and power, as well as their very character. Changes in the material constitution are always the result of developments in long-standing social reports. As it is known, the Albertino Status, which has served as a reference point for the studies of Costatino Mortta and others on the material constitution, was adopted in 1848, while the Italian material constitution was built after Italian unification (1871) and, more dramatically, after Benito Musslin's fascists came to power (1922).

Kosovo material constitution of February 17th 2008

Kosovo's Declaration of Independence has come as a result of a long process of dialogue, negotiation and political concessions to Serbia and the international community. With Russian support, Serbia has left this process due to dissatisfaction with concessions made by the Kosovo side. It has at the same time urged local Serbs to flee the newly established constitutional system -- from the first day they rejected the political goal of the first constitutional project and the new security of power. The declaration of Independence represents the triumph of Kosovo's new material constitution. In the advisory opinion of Kosovo of the International Court of Justice (GJND), this constitution was born outside the legal order of the timely material constitution, based on international law (general and special). It was not only the local Serb social forces that rejected the political goals and political unity that was created on February 17th 2008. There has been such rejection of the Vetevendosje Movement (LVV) and former Kosovo president, Mr Hashim Thaci.

Following the UN General Assembly's decision on Kosovo, the UN General Assembly instructed the parties to continue dialogue, with the European Union's mediation (BE), with the goal of resolving life problems and daily work. Here the EU is represented as a regional organisation, in the sense of the UN Charter, by international authorisation, excluding all others, to mediate in resolving the contentious issues between the parties. On this logic began dialogue in 2011 and produced dozens of agreements, which have a mandatory international character, regardless of the parties' illusions in the conflict that they are not. None of the agreements reached by 2023 have affected the purpose of the original constitutional project, the form and content of the material unity of the February 17th 2008 material constitution -- with the first agreement on normalising relations with Serbia, ratified in the Kosovo Assembly in 2013 -- no change or shift was provided to the security of power, respectively in the report between the ruling (dominating) and (designed) governing forces. This was not the case with the second agreement in 2015, which was an act of implementation of the 2013 agreement. This agreement, as it is known, was declared unconstitutional with an act of Constitutional Court in 2015. This act left only the procedural aspects of Kosovo's international obligation in force. This means, to this day, taking certain steps. The first step is the formation of an management team for drafting an Association/Uniting of Serb majority municipalities (A/BKSHS) statute. The second step consists of approval by Kosovo executive, with a separate decision, of A/ BK S. The third and final step is sending from Kosovo executive to the Constitutional Court for constitutional control of the draft in question. While Kosovo's procedural obligations have been clear, as seen from above, this has not been the case with the content that should have A/ BK S. This is about the fact that the 2015 act, only negatively, has defined the constitutional bans that each constitutional organ is obligated to abide by the content of the A/ BKSHS and, as a result, in terms of authorizations that should have A/ BK S. The court, in particular, has clarified that the expression “complete surveillance” from the 2013 agreement, dares not have executive nature or usurp the competencies of existing municipalities.

Brussels and Ohrid material constitution 2023

Clearly, the 2015 Constitutional Court Act has made it clear the procedural side and constitutional restraint stops of the 2013 Agreement. He knew it or had to know either of the title members of the institutions of power in the country, regardless of their vital minorities. With this normative fact, Kosovo's prime minister in 2023 linked two agreements -- one in Brussels and the other in Ohrid -- to which we are referred as the 2023 agreements, which have largely overturned the objectives of the original constitutional project and the political unity promoted in it. Their provisions clearly highlight the overturning of the power configuration sanctioned with the constitutional documents of Kosovo's material independence constitution, in line with the Declaration of Independence (DI) and the Constitution of Kosovo (KKos). We note that the Ohrid Agreement is an act of implementation of the Brussels Agreement, as has been the declared unconstitutional agreement in 2015 act of implementation of the 2013 ratified agreement. According to international law, the 2023 agreements constitute innovation, or replacement, upgrade and modification of Kosovo's existing obligations -- that is, obligations under the 2013 Agreement and 2015 Act of Act. In other words, according to international law, the 2023 agreements have replaced, updated and modified Kosovo's existing obligations in relation to the creation of A/BSHS.

Determination Moments: Five Fatal Errors

There are five dimensions that represent the essence of mistakes with long-term consequences. With the agreements of 2023, Prime Minister Kurti has unconstitutionally built the foundation of a new material constitution for the benefit of local Serbs and Serbia; he has cooked a new constitutional reality by acting instead of the Kosovo Assembly, exercising original creative power or constitutional power, as it is called in constitutional terminology. Expressed in popular words, Mr. Kurti has cooked the pie called the material constitution for the benefit of Kosovo Serbs and Serbia as a state, there is only the act of putting it in the oven to mature. It remains to be seen who will roast Kurti's new constitution prepared for 2023. This is of little interest to the author of these lines. Interestingly, the fact that, unfortunately, no provision of the 2023 agreements describing the new material constitution of Kosovo Serbs, including the EU Stattu, which has been drafted with the consent and full blessing of Prime Minister Albin Kurti, cannot be changed, nor are they subject to future negotiations. Kosovo's admission to the Council of Europe ( The KiE) implies implementing the material constitution established in 2023, where there is no longer the Association of Serb majority municipalities, but the Community of Serb municipalities with clear constitutional jurisdiction.

We now return to five fatal mistakes for Kosovo, but also for Mr. Kurti's country in Kosovo's newest history.

First, Mr. Kurti has given up any recognition in relation to Serbia. Second, he has recognized Serbia's right to permanent denial of Kosovo's citizenship. Thirdly, he has created political and territorial autonomy for local Serbs; it is political, because local Serbs are represented directly in their relations with central power as an equal partner, not in the subordination report; it is territorial, meanwhile, because self-advantation is valid for municipal territories, which in the Serbian case are not only clear but without their consent cannot be changed. Fourth ʹ formalising the position of the Serbian Orthodox Church (KOS) means extraterritoriality, because it will function outside any legal restrictions of the Kosovo authorities, even more freely than on Serbia's territory. Finally, Kurti's agreements with Serbia are not final -- they have laid the foundation of endless dialogue that never ends. This fact stops any new recognition, because other states see the Kosovo issue as a status issue, not as a dialogue on resolving daily issues and problems between the two countries, as has been the dialogue when Kurti takes over.

All these mistakes overturn the goal of the original constitutional project of DI and KKos and the very political unity promoted by them create a Serb Kosovo and another Kosovo, which cannot be Albanian Kosovo. The struggle between them will remain a constant state, one denying the other's existence. Only a favorable global change for us, of the Force Report, can change this state of affairs. Until then, welcome to “two Kosova”!

(Autori is the first president of the Constitutional Court and professor of law and international relations)