On Tuesday (March 31), the Constitutional Court issued its decision on the constitutionality of recent government measures introduced in an effort to help combat the COVID-19 pandemic.

The decision ruled that the now-acting government’s restrictions on movement via government decisions are “not foreseen by law” and therefore contravene the guarantees contained in the Constitution on freedom of movement, right to privacy and freedom of gathering. 

However, the Court decision postponed its entry into force until April 13, taking into account the potentially harmful effects on public health if an immediate abrogation of the restrictions would be enforced in the current situation with the pandemic. 

Currently in Kosovo there are 112 confirmed cases of COVID-19, as each day the Institute of Public Health conducts testing of people who’ve been in contact with those who have previously tested positive and citizens who display symptoms. Five patients have recovered so far, while one elderly patient, who suffered from underlying health conditions, has died. Forty-three patients are hospitalized in the Infectious Disease Clinic at the University Clinical Center, with one those in intensive care, and six “being taken care of intensively.” 

Like its counterparts around the world, Kosovo’s government has responded to the public health emergency by taking a series of restrictive preventive measures.

After the government decided to introduce a curfew on citizens and to enhance restrictions on assembly on March 23, President Hashim Thaçi referred the decision to the Constitutional Court for interpretation saying that it was “unconstitutional.” 

In an extraordinary press conference held later that night, he told citizens, the police and security authorities that they were not obliged to respect the government’s decision, and re-issued a call for a State of Emergency, which would concentrate significant power in his hands. 

The president’s statement raised wide concern as it was seen as inviting insubordination, and some commentators have likened it to an attempted coup. 

Following Thaçi’s press conference, now acting Prime Minister Albin Kurti’s Vetëvendosje party made its own request to the Constitutional Court, asking it to assess the constitutionality of the president’s actions; the Court has yet to issue a decision in this case.

According to the Court’s decision on the government’s actions, the Law for Prevention and Fighting Against Infectious Diseases and the Law on Health — which were referred to by the government as a basis for imposing restrictions — do not authorize the government to restrict the rights and freedoms of Article 35, 36 and 43 of the Constitution; these relate to freedom of movement, right to privacy and freedom of gathering. 

“The two above-mentioned laws, authorize the Ministry of Health to take certain measures laid down in those laws in order to prevent and combat infectious diseases,” says the Court’s decision.

Speaking in a live interview on KTV on Tuesday evening, Kurti said the judgement was “a surprise” but that his acting government would respect it. 

He added that the Court did not dispute the “legitimacy of the intent” but the procedural steps taken, so by April 13, the acting government would consider “issuing a new decision with a different procedure.” 

Reciprocal measures as tariffs temporarily withdrawn

During the KTV interview — which has received more than 2 million views on Facebook alone — Kurti announced that the government had voted to remove the 100% tariff on goods coming from Serbia and Bosnia and Herzegovina from midnight. In its place, it issued a decision “on the gradual implementation of reciprocity as a principle in relations with Serbia,” but not with Bosnia. 

The decision is set to remain in force until June 15, with its implementation and enforceability reviewed at least once a month. 

In terms of trade with Serbia, the acting government’s measures state that labelling on sanitary and veterinary certification, along with accompanying documentation, which are subject to border controls, must be in accordance with Kosovo’s Constitution and its legislation. 

Hinting at potential further measures under consideration, Kosovo’s acting Minister of Economy, Employment, Trade, Industry, Entrepreneurship and Strategic Investment, Rozeta Hajdari, held a joint press conference with Kurti on Tuesday night in which she read out a list of some of the non-tariff barriers that a ministerial working group had identified as currently being imposed by Belgrade. These range from technical barriers, such as Serbia demanding Kosovo’s products to fulfil standards required of products produced in Serbia, to Serbia’s non-recognition of Kosovo vehicle registration places, IDs and academic and professional qualifications.

“Moreover, Serbia does not accept third-country goods and citizens entering Serbia via a border crossing with Kosovo,” said the acting minister. “It has also imposed barriers to transport, electronic and postal communications and energy, among other areas.”

On Monday (April 1), acting General Director of Customs, Ibrahim Xhaka, told Kallxo.com that the entry of products bearing an asterisk next to Kosovo’s name will not be allowed and that the first trucks with goods from Serbia had been turned back.

Responding via Facebook post to the Kosovo government’s decision to replace the tariff with new measures, Serbia’s director of the Office for “Kosovo and Metohija,” Marko Đurić, called the removal of the tariff “fake news,” and “a play” aimed at members of the international community. 

“The Prime Minister of temporary institutions in Pristina announced only a broken suspension of tax and probation, while at the same time introduces new punitive measures for our citizens and the economy, which he calls reciprocity,” his post reads. “This does not deescalate and does not return to the state before the introduction of anti-civilization taxes on goods from central Serbia.”

The tariff, which was introduced in 2018 by former Prime Minister Ramush Haradinaj, resulted in Serbia withdrawing from the EU-facilitated Prishtina-Belgrade dialogue.

In February, Kurti had announced that he intended to lift the tariff on raw materials in mid-March and after this initial “good will” gesture, if Serbia ceased its decregonition campaign against Kosovo, Kosovo would temporarily lift remaining tariffs by April 1; if not, Kosovo would start to apply reciprocal measures on the same date.

However the government came under intense pressure from the U.S. to lift the tariffs immediately and unconditionally; disagreement over the issue was ultimately cited by Vetëvendosje’s coalition partner, LDK, for initiating a successful motion of no confidence in the government on March 25 after just 52 days in office.

In the meantime, Serbian authorities have appeared to continue their campaign, with Sierra Leone becoming the latest country to reportedly “derecognize” Kosovo’s independence, although it is not clear what standing — if any — the notion of “derecognition” has in international law.

The acting government’s decision on the tariffs has drawn a mixed response from foreign diplomats, with European countries and the U.S. showing increasing signs of division in their statements in recent times.

EU High Representative for Foreign Affairs and Security Policy Josep Borrell welcomed the decision in a tweet, mentioning the removal of the tariff, but not the reciprocity measures. 

However the U.S. Ambassador to Kosovo Philip Kosnett reiterated his country’s stance against the acting government’s position, and said that Kosovo should not create new barriers “because these policies hurt the people of Kosovo and strangle Kosovo’s own economy.”

Constitutional uncertainty continues

Amongst these political developments, a fundamental question remains: What happens next in the constitutional limbo that Kosovo has been in since the Assembly dismissed the government in a motion of no confidence last week?

According to the Constitution, a successful motion of no confidence means that “the Assembly may be dissolved by the President,” which would require new elections to be held within 45 days. This has been the case in the three successful motions of no confidence since Kosovo’s independence — in 2010, 2014, and in 2017, with Thaçi as president.

However, considering the restrictive measures in place to combat COVID-19, elections don’t appear to be a viable option at the present time.

Thaçi has said that he intends to find a government “that will bring stability, greater political and civic unity, that will be inclusive and of a clear Euro-Atlantic orientation,” and has begun holding meetings with the leaders of political parties to get their suggestions on how to proceed.

One potential path that some commentators have suggested could be in line with “constitutional provisions” — although it is unclear whether it applies in the case of no confidence motion — is for Thaçi to give the most voted party in the last elections — Vetëvendosje, in this case — another mandate to form a government. 

However, Kurti has spoken firmly against this option, saying: “Once the COVID-19 pandemic is over — which we must all fight together by supporting and helping rather than obstructing or sabotaging the acting government — we must go to the people as a source of sovereignty for new, free and democratic elections.”

Meanwhile, a poll conducted with KTV viewers during its interview with Kurti on Tuesday, found that 94% of 116,219 respondents answered “Yes” to the question: “Should Albin Kurti continue to be the Prime Minister of Kosovo?”

After his meeting with Thaçi LDK’s leader, Isa Mustafa, agreed that it is not the time to go to new elections. “We are in favor of the formation of a new government following all the constitutional procedures and the procedure laid down in the 2014 Constitutional Court judgment,” he said. 

That judgement, following the disputed election outcome in 2014, set out the responsibilities of the president in determining the mandate for establishing a government.

Kadri Veseli, the leader of the party that came third in October’s elections, said after meeting with Thaçi that his party would stay in opposition rather than join any new government formed at this time, adding that, “it is hypocrisy to call for extraordinary elections when we know that elections cannot be held within 45 days.”K

Feature image: Atdhe Mulla / K2.0.

* Editors note: The number of respondents has been corrected. The originally published figure of 72,000 was the number originally stated by KTV, but it was subsequently updated.