The Constitutional Court has declared admissible the complaints of PDK and LDK deputies against the Law on Public Officials.
This was announced through a press release on Thursday, by the Constitutional Court of Kosovo.
The panel of judges of the Court has decided unanimously that the Law on Public Officials is not in compliance with paragraph 1 of Article 3, Equality before the Law, of the Constitution of Kosovo.
"Based on the findings above, the Court also decided: (i) to find that based on Article 43 (Term) of the Law on the Constitutional Court, the contested Law is sent to the President of the Republic of Kosovo for promulgation, without the provisions found in opposition with the Constitution and according to the specifications defined in the Court Judgment; (ii) in accordance with paragraph 1 of Article 116 [Legal Effect of Decisions] of the Constitution, to order the Assembly of the Republic of Kosovo to take the necessary actions for completion and amendment within six (6) months from the entry into force of the Judgment of: (a) paragraph 6 of article 67 (Waiting list); (b) paragraph 6 of article 27 (The right to information about the employment relationship and the right to appeal) and paragraphs 3 and 4 of article 88 (The public service employee's right to appeal) and article 6 (The employee/ civil with special status) of the contested Law, in accordance with the Constitution and this Judgment; and (iii) to determine that the Judgment enters into force upon its publication in the Official Gazette of the Republic of Kosovo", states the decision of the Constitutional Court.
Below are presented the articles and paragraphs which the Constitutional Court has abolished.
also
The Constitutional Court assesses that the Law on Public Officials was not unconstitutional, it enters into force
Article 9. par 3 and 5- General criteria for the acceptance of the public official
This article defines the general criteria to be accepted as a public official in any category or level of public officials.
In paragraphs 3 and 5 of this article, which were abolished by the Constitutional Court, it is stated that:
"3. Notwithstanding the provisions in paragraph 1., sub-paragraphs 1.1. and 1.3. of this article, foreigners, members of the diaspora and citizens from countries with which the Republic of Kosovo has agreements, who possess the necessary qualifications for the workplace, may be accepted as public officials. The government, with a by-law, defines the state functions in which these categories can be accepted as public officials.
Eligibility and/or additional specific criteria for appointment to a position according to this article, for employees in the Presidency of the Republic of Kosovo, the Constitutional Court of the Republic of Kosovo, the Justice System, the Assembly of the Republic of Kosovo, and independent constitutional institutions, regulated by this law and by a special act approved by the competent bodies of these institutions".
According to the announcement of the Constitutional Court regarding this provision, it is stated that: "Taking into account the detailed principles related to legal certainty, including the obligation that the relevant provisions of the law be "clear, accessible and predictable", the Court has assessed that the definition of the criterion of "suitability" is incompatible with the constitutional guarantees according to the clarifications given in the enacting clause of the Judgment".
Article 12. par 1.1 and 2 - Government of the Republic of Kosovo
According to Article 12 of the Law, the Government of the Republic of Kosovo approves and coordinates general state policies for the employment of public officials, as well as "supervises their implementation and reports on the state of public officials to the Assembly of Kosovo."
"1.1. approves and coordinates general state policies for the employment of public officials, as well as supervises their implementation
The Government of the Republic of Kosovo reports to the Assembly of the Republic of Kosovo on the state of public officials until March 31 for each calendar year, for the previous year".
Article 13. Par 1.1, 1.2, 1.5, 1.9, 3, 4 and 5- Ministry responsible for public administration
This article defines the responsibilities of the Ministry of Public Administration.
"1.1. designs, proposes, coordinates and supervises the implementation of policies for the public official;
1.2. supervises the implementation of legislation for public officials in state administration institutions;
1.5. prepares a declaration of compliance with this law, for each draft act proposed by other institutions, which has to do with the work relationship of the public official;
1.9. requests and receives from the institutions of the Republic of Kosovo any necessary information in the field of labor relations;
Responsibilities defined in sub-paragraphs 1.1. and 1.9. of this article, as far as they relate to the employee in the public service, are carried out in cooperation with the ministry responsible for state policies for the relevant public service.
Every institution that takes on public official work, as well as every public functionary and public official, who has managerial decision-making powers, or who has information in this field, cooperates with the ministry responsible for public administration.
The Ministry responsible for public administration is the only institution of the state administration that has the competence to provide explanations regarding the provisions of this law".
In the announcement of the Constitutional Court, it is stated that the judgment clarifies that the joint reading of articles 12, 13 and 104 of the contested Law, through which the Independent Supervisory Council is essentially stripped of its constitutional functions, and which are appropriated by the Government, results in a violation of the articles 4 and 101 of the Constitution, respectively.
Article 27. Par 3 and 6- The right to information about the employment relationship and the right to appeal
This article defines the rights of public officials in the employment relationship and the issue of legal remedies.
"3. The civil servant has the right to submit a complaint to the Independent Supervisory Council of the Civil Service of Kosovo for any action or inaction that violates the rights or legal interests, these rights stemming from the work relationship in the service civil, in the cases provided under this law.
The public service employee and the technical and support employee have the right to submit a complaint to the Labor Inspectorate. After exhausting the right to appeal to the Labor Inspectorate, a labor dispute can be initiated in the competent court, according to the relevant legislation in force".
Article 88. Par 3 and 4- The right to appeal of the public service employee
also
The GLPS calls for the amendment of the Law on public officials to be sent to the Constitutional Court
In this article of the Law on Public Officials, the public service employee's right to appeal is defined in the case where he claims that his rights have been violated by the employment relationship.
These two paragraphs of this article have been abolished by the Constitution.
"3. Review of complaints is within the competence of the Labor Inspectorate.
After exhausting the right to appeal to the Labor Inspectorate, the employee can initiate a labor dispute in the competent court, according to the relevant legislation in force".
In the announcement published by the Constitutional Court, among other things, it is said that: "the judgment emphasizes that such a legal definition is in complete contradiction with the Labor Law and the Law on the Labor Inspectorate itself, which does not define the same the competence to resolve disputes from the labor relationship and, moreover, with the principle of separation and balancing of powers defined in Article 4 of the Constitution".
Article 67. par 6- Waiting list
In this article of the Law, the issue of placement on the waiting list of civil servants who, after the dissolution or restructuring of the institution, have not been transferred according to article 66 or the cases provided for by law, is defined.
Out of the six paragraphs that this article has, only one paragraph has been repealed, and that only paragraph six, which defines the issue of issuing a by-law by the Government.
"6. The rights and obligations of waiting civil servants, including their salaries and training, are determined by the Government with a by-law after the proposal of the ministry responsible for public administration in consultation with the Ministry responsible for Finance.
Otherwise, the Constitutional Court in the published announcement said that: "Paragraph 6 of Article 67 (Waiting List) of the disputed Law is not in compliance with paragraph 1 of Article 3 [Equality before the Law] and paragraph 1 of Article 7 [Values ] of the Constitution".
Article 99. par 1-7- Transitional provisions
Out of 21 paragraphs of this article, the Constitutionalist has abolished 7 paragraphs, and that paragraph 1 to 7.
"1. The civil servant in employment in the civil service, in accordance with Law No. 06/L114 for Public Officials and who holds a position equivalent to the positions of civil servants in terms of functions and responsibilities, is considered a civil servant according to Article 2, paragraph 3. of this law, from the day of entry into force of this law the law.
No later than one (1) year after the entry into force of this law, for all low and middle management positions, the recruitment procedure will be announced according to the planned sequence through an open and public competition, except for positions which were free and were filled during the transitional phase of recruitment according to Article 98 of this law.
In the announced recruitment procedure according to paragraph 2. of this article, the public official who has been appointed to that position until the moment of the announcement of the recruitment procedure for the position in question has the right to compete.
If the public official as in paragraph 3. of this article, after the completion of the recruitment procedure, is not declared the winner for appointment to the relevant position or has not competed at all, she/he will be classified in the professional category, provided that she/he meets the criteria for appointment to the said position.
The public official, as in paragraph 4. of this article, will benefit from compensation that is equal to the difference between the basic salary of the management position she has exercised and the salary of the professional category in which she is organized, in:
1. 100% of the salary difference, during the first year after the systematization in the professional category;
2. 75% of the salary difference, during the second year after the systematization in the professional category; 64 5.3. 50% of the difference in salary, during the third year after the systematization in the professional category;
4. 25% of the difference in salary, during the fourth year after the systematization in the professional category.
Until the appointment to a professional category position, according to paragraph 5. of this article, the civil servant is placed on the waiting list and enjoys the rights as defined in article 67 of this law. The refusal to be appointed to the position of the professional category constitutes a reason for the release of the employee from the service.
The rights from paragraphs 2,3,4,5, 6, XNUMX, XNUMX and XNUMX of this article are valid only once, for the period and circumstances determined according to these paragraphs".
According to the constitutional judgment, the judgment finds that Article 99 of the contested Law is not in compliance with Article 46 of the Constitution in relation to Article 1 of Protocol no. 1 of the ECHR.
Article 104 - Repeal
also
The opposition warns to bring the Law on Public Officials back to the Constitution
"2. With the entry into force of this law, every other provision contrary to this law is repealed".
In the notification of the Constitutional Court, it is stated that paragraph 2 of Article 104 (Repeal) of the disputed Law is not in compliance with paragraph 1 of Article 3 [Equality before the Law], paragraph 1 of Article 4 [Form of Government and Separation of Powers] and paragraph 1 of Article 7 [Values] of the Constitution.
