EU draft statute for Association “unlikely to be cancelled”

The draft statute of the Association of Serb-majority Municipalities is not in accordance with the Constitution of Kosovo, but "it cannot be annulled," Enver Hasani, former president of the Constitutional Court of Kosovo, currently a professor of Law and International Relations at the University of Pristina, tells Radio Free Europe.

Belgrade-based political scientist Ognjen Gogić agrees with this assessment, saying that problems could arise regarding the formation of the Association if "an unconstitutional draft statute is sent to the Constitutional Court of Kosovo for review."

Kosovo President Vjosa Osmani said on March 21 that the draft statute of the Association of Serb-majority Municipalities, drafted by the European Union, is not in accordance with the Constitution of Kosovo.

Osmani began making frequent statements on this topic after his meeting with the EU envoy for the Kosovo-Serbia dialogue, Peter Sorensen, on March 17.

She said she expressed to Sorensen her objections to this draft statute, which was offered to Kosovo and Serbia in October 2023 by the then envoys of the EU, the US, France, Germany and Italy.

At the time, the EU described it as a "modern model" for the protection of minority communities, while the document was accepted in principle by both Kosovo's Prime Minister, Albin Kurti, and Serbia's President, Aleksandar Vučić.

But, in the meantime, Kurti has changed his stance on this draft statute and refused to send it for review to the Constitutional Court of Kosovo - an action that would mark the first step towards the creation of the Association.

Radio Free Europe asked the European Union whether its position on the formation of the Association has changed and whether there is any other solution on the horizon for the Serbian community in Kosovo, but, as of the publication of this article, it had not received a response.

The Kosovo Government also did not respond to Radio Free Europe's questions about whether it agrees with President Osmani's assessment that the draft statute for the formation of the Association is unconstitutional and whether it is planning a new draft statute or seeking alternative solutions.

Regarding this topic, Radio Free Europe did not receive a response from the Office for Kosovo in the Government of Serbia either.

Osmani: My remarks on the statute are substantial

Osmani said that her remarks on the draft statute of the Association of Serb-majority Municipalities are of a substantial nature and that she has also conveyed her position to the new EU envoy for dialogue, Sorensen.

"They are not technical remarks. A president of a country does not make technical remarks. So, he makes substantial remarks, in terms of inconsistency with the Constitution of Kosovo and the risk that the draft statute may pose to the internal functionality of Kosovo," Osmani told reporters on March 21.

She added that her remarks are her personal opinion and that only the Constitutional Court of Kosovo can assess the draft statute offered by the EU, or any other draft that may be offered by Kosovo institutions - "whenever such a moment comes."

Professor Hasani says that this statement by the President of Kosovo is overdue and that she is using it for domestic politics.

"I believe he is doing it to get in the way of the current government. He thinks and hopes that he will be re-elected [for another term] as president next year. Meanwhile, if anyone thinks that the dialogue can change in content and that what was achieved in Brussels can be canceled or invalidated, he is the most naive," says Hasani.

The Association of Serb-majority Municipalities provides for a certain level of self-management for Kosovo Serbs.

The first agreement on its establishment was reached in 2013, within the framework of the Kosovo-Serbia dialogue, mediated by the EU, while its principles were agreed upon in 2015.

But, that same year, the Constitutional Court of Kosovo found that some of these principles were not in accordance with the country's Constitution, even though they could be harmonized.

Hasani: The draft statute is an implementation of the Brussels and Ohrid Agreements

Hasani agrees with the finding that the draft statute of the Association of Serb-majority Municipalities, drafted by the European Union, conflicts with the Constitution of Kosovo.

But, according to him, this draft statute "is a derivative of the Basic Agreement on the path towards normalization of relations" between Kosovo and Serbia.

Kurti and Vučić agreed on this agreement in February 2023 in Brussels, while in March of the same year, in Ohrid, they agreed on the Annex for the implementation of the agreement.

Hasani says that the draft statute of the Association contains the implementation of both of these agreements, which, as he says, are in the function of political-territorial autonomy for the Serbs of Kosovo.

"All of this is in brutal contradiction with the Constitution of Kosovo. But the draft statute [of the Association] cannot be annulled without annulling the other two agreements [of Brussels and Ohrid]. This cannot happen," Hasani emphasizes.

He adds that the Basic Agreement and the Annex for its implementation cannot be annulled, because they have become part of the European legal order, which conditions the progress of Kosovo and Serbia towards EU membership.

Gogić: Osmani should not have made her remarks public

Belgrade political scientist Gogić also says that the EU draft statute for the formation of the Association is not in line with the Kosovo Constitution.

However, he emphasizes that President Osmani's statements can be viewed from two perspectives: that she rejects the draft statute, or that she "timely highlights the problems that may arise."

"Perhaps it is debatable why she went public. Perhaps she should have addressed them [the EU], considering that the draft statute has never been officially published. But, if the version we have seen in the media is correct, I share her assessment that it is not in accordance with the Constitution and that it is a surprise that it came from the EU," says Gogić.

Radio Free Europe has had access to the draft statute prepared by the EU, which specifies that the Association will not have executive powers and will not threaten the independence and integrity of Kosovo.

It is also emphasized that the document will be subject to review by the Constitutional Court of Kosovo.

This draft statute, among other things, clearly foresees the possibility of financial support for the Association from Serbia and "an efficient direct channel of communication between the Kosovo Serb community and the Government of Kosovo, through the Ministry of Local Government Administration".

The part of the statute that refers to the powers of the Association of Serb-majority Municipalities specifies that this body has the right to make decisions, adopt regulations, instructions and declarations.

It would also have full authority at the local level in the areas of economic development, spatial planning, health, education, and the protection of cultural and religious identity.

The Association is expected to have the right to initiate or be a party to court proceedings, including the Constitutional Court of Kosovo, if the decisions or actions of any institution affect the exercise of its powers in accordance with the statute.

Can the EU change its stance on the Association?

Hasani and Gogić agree that the European Union will not change its approach regarding the formation of the Association or the agreements reached in Brussels and Ohrid.

Hasani does not believe that the Constitutional Court can "overturn or annul" the EU's draft statute for the Association.

"Consequently, the draft statute can only be changed in certain parts. In my opinion, it can only undergo cosmetic changes," according to him.

He also expresses confidence that the EU has not changed its approach regarding the draft statute of the Association, as well as the agreements reached in Brussels and Ohrid.

Gogić, on the other hand, considers that the EU may see for itself that the draft statute is not "the most appropriate" and may offer a new document.

“You can't push a statute that can't pass [the Constitutional Court's assessment] and give even more material to those who oppose the Association in Kosovo,” says Gogić.

At the end of last year, Kosovo's Prime Minister, Albin Kurti, said that he, as the country's prime minister, could not form the Association of Serb-majority Municipalities because the Basic Agreement had not been signed.

Kurti considers that signing the Agreement would be a guarantee that Serbia would also fulfill its obligations towards Kosovo.

Kosovo is currently in the process of forming a new government, following the February 9 parliamentary elections, in which Kurti's Vetevendosje Movement won the most votes.