A request has just been submitted to the Constitutional Court of Kosovo for an assessment of the constitutionality of the regulation of the Central Bank of Kosovo, which eliminates the circulation of the dinar currency, and which entered into force on February 1st, one of the lawyers who drafted the request confirmed for KoSSev. The request also states that the regulation should be suspended until the Constitutional Court makes a decision, that is, either confirms or refutes its constitutionality.
A lawyer from Gnjilan, Vasilije Arsić, submitted the request challenging the constitutionality and legality of the regulation, and calling for the regulation to be evaluated due to its harmful effects on citizens, due to violations of their basic human rights, to the Constitutional Court today.
The request was drawn up by a four-member lawyer team, which, in addition to Arsić, also includes Dragutin Nenezić, and and professor of Law, Dušan Čelić.
The request indicated that the regulation is not in accordance with Articles 7, 11, 22, 23, 24, 25, 46, 49, 51, 57, 58 and 59 of the Constitution of Kosovo, as well as Article 16 of the Law on the Central Bank of Kosovo.
The main complaint of the lawyers expressed in this request concerns Article 35 of the CBK Regulation, which envisages for the euro to be the only currency used for cash transactions and payment systems in Kosovo in regard to „Article 11 of the Constitution of the Republic of Kosovo and Articles 16, 17 and 18 of Law no. 03/L-209 on the Central Bank of the Republic of Kosovo“.
The request submitted today states that this provision contradicts the constitutional provision that the issue must be clearly regulated by law, and not by an act of the CBK.
„Obviously, the regulation regulates the matter for which the law, on the basis of the Constitution, provides that it can be regulated by law, which represents a drastic violation of the basic tenets of the rule of law. Such a decree is in direct violation of the Constitution, and as such cannot be allowed to stand in the constitutional order of the Republic of Kosovo,“ the request states.
The application of Article 35 of the decree violates basic human rights – to property, work, profession, health and social welfare
The request also states that Article 35 of the regulation violates a number of human rights guaranteed by the Constitution, as well as international conventions that are directly applicable on the basis of Article 22 of the Constitution, among which are the right to property, to work and health services and social welfare.
„Bearing in mind that citizens of Kosovo who exercise these rights by receiving income (wages, pensions and other claims) or have their savings in dinars, the exercise of these rights is denied by the application of Article 35 of the regulation by the dinars being confiscated or their entry into the territory of Kosovo being banned. Additionally, the Central Bank of Kosovo has not yet enforced appropriate measures that would enable said income or savings to be received in euros, so it is indisputable that until these measures are implemented, they cannot be used,“ the request adds.
The application of Article 35 of the regulation is discriminatory; there was no consultation with the Serbian community
The request also stressed that the application of this article of the regulation is discriminatory, since it primarily affects the Kosovo Serbian community.
„Although the regulation itself does not contain explicitly discriminatory provisions, the fact that its application is discriminatory indicates indirect discrimination, which as such is contrary to Articles 7, 24, 57, 58 and 59 of the Constitution, as well as international conventions that are directly applied in Kosovo on the basis of Article 22 of the Constitution“.
Moreover, the request also reminds that before the regulation was passed, no consultations with the Serbian community were organized:
„Since the implementation of the decree primarily affected members of the Serbian community, it was passed contrary to the provisions of Articles 57-59 of the Constitution, as well as Article 15 of the Framework Convention of the Council of Europe for the Protection of Minorities, which is directly applicable in Kosovo based on Article 22 of the Constitution, since the adoption of the decree was not preceded by consultations with the Serbian community.“
UNMIK regulations still in force
At the same time, the adoption of the regulation did not invalidate the provisions of the UNMIK regulation, which is an integral part of the current legal order of Kosovo.
These provisions were defined in the Decree passed in September 1999, which stipulate that „an individual who wants to pay the mandatory payment in dinars, which according to Article 4.1 should be paid in another currency, can do so at the appropriate exchange rate applicable on the day of payment…”
„With these provisions of these acts, the dinar is envisaged as a valid means of payment in Kosovo, while Article 35 of the contested regulation provides for the euro as the only means of payment in Kosovo, which brings these regulations into conflict. In that sense, this also represents a violation of the cited Article 7 of the Constitution, since the rule of law undoubtedly implies mutual conformity of legal acts.“
A suspension is requested until the final decision or assessment of the Constitutional Court
Arsić concluded that it is completely indisputable that Article 35 of the contested decree is unconstitutional, calling on the court to verify this and make it void.
Emphasizing that the application of this regulation causes „irreparable damage to the citizens of Kosovo“ and that „their basic human rights are grossly violated“, this lawyer proposes that until the final decision on constitutionality is made, an interim measure is adopted, namely:
„That the validity of Article 35 of the Regulation on Cash Operations is suspended in accordance with Article 27 of the Law on the Constitutional Court until a final decision on its constitutionality is made.“
Arsić revealed that he submitted the request to the Constitutional Court today, and that it was filed under number 272 without any problems.
He expects to receive a reply to the request or to the proposal for an interim measure in the shortest time possible. On the other hand, he underlined that the court’s final decision on constitutionality should arrive within a month.
The only way
The lawyer, Dragutin Nenezić, who was part of the team that drafted the request, spoke about the regulation 35 of the Central Bank of Kosovo itself, and its discrepancy with the Kosovo legislation, in a statement for KoSSev.
He emphasized that the submission of this request, that is, the introduction of an interim measure on the suspension of a provision of the regulation, is the only way to get out of the current situation.
The key issue is that it is a matter that cannot be regulated by a decision:
„The Constitution and the law on the central bank stipulate that the use of currency is prescribed only by law. So a law is required, and it is not possible to pass it because the assembly is dysfunctional, and that law also belongs to the laws for which non-majority communities must vote…“.
In addition, he added that the request was also submitted due to its effect on the citizens themselves, not only on Serbs – but on all those who earn income from Serbia.
Nenezić also presented the same arguments in a recent analysis for KoSSev, claiming that the CBK regulation, specifically the article related to currencies, is not in accordance with the Kosovo constitution.
Preuzimanje i objavljivanje tekstova sa portala KoSSev nije dozvoljeno bez navođenja izvora. Hvala na poštovanju etike novinarske profesije.
