Legal framework for Kosovo Serbs tailored to Pristina

Dragutin Nenezić
Dragutin Nenezic is a lawyer from Belgrade who has been working in Kosovo for more than a decade. Nenezic advised and represented parties in privatization and property disputes before the Pristina courts. Over time, he became an expert on property issues in Kosovo, and in that capacity, he participated in various forums and initiatives. He currently works as a consultant in the field of infrastructure, energy, and ecology, as well as public policy.

By Dragutin Nenezic

ASM

Bearing in mind the fact that the focus of Serbian politics in Kosovo and Metohija (hereinafter: KiM) has been recently fixated on the formation of the so-called Association of Serb-majority Municipalities (hereinafter: ASM), as part of the obligations undertaken in Brussels, it seems that it is necessary to reassess Pristina’s view of this.

Namely, the documents signed by the representatives of Belgrade and Pristina in Brussels in 2013 (entitled First Agreement of Principles Regulating the Normalization of Relations between Belgrade and Pristina; hereinafter: the Framework Document) and 2015 (entitled Association/Community of Serb Majority Municipalities in Kosovo – General Principles / Key Elements; hereinafter: the ASM Document) envisages the establishment of the ASM as per Pristina’s regulations (item no.2 of the Framework Document and item no.1 of the ASM Document).

In that sense, Belgrade’s policy is completely irrelevant, keeping in mind that it is not a source of law in Pristina. Therefore, it would be more expedient to take a look from the other side of the so-called administrative lines and analyze the scope of Brussels documents within Pristina’s legal system. This text is an attempt to examine where the implementation of the Brussels documents as per the Pristina regulations can lead to, i.e. what are the possible legal consequences of accepting such a course of events.

1. ASM as per a decision of the Pristina Constitutional Court

As it is well-known, considering that Pristina mostly points to that decision, the Brussels documents were assessed by the Pristina Constitutional Court in 2015 (the Decision, together with the accompanying acts, is available here). Unlike the Constitutional Court of the Republic of Serbia, which rejected the initiative to assess the constitutionality of the Framework Document out of formal reasons (read the text of the decision here), the Pristina Constitutional Court assessed the content of both documents.

What is often overlooked, however, is that the Pristina Constitutional Court treated the Framework Document differently from the ASM Document. Namely, the Framework Document, since it was ratified in the Pristina Parliament as an international agreement (which is another difference in the legal treatment of this document by Belgrade and Pristina), has primacy over the Constitution and laws under the Pristina Constitution (Articles 16 and 19 Constitution, available here). In this sense, the Pristina Constitutional Court treated the Framework Document as part of its legal order (which is directly applicable) and did not examine its constitutionality, as it is in fact above the Pristina Constitution. When Serbian politicians talk about Pristina’s obligations regarding the ASM, they usually stop here.

On the other hand, the ASM document has not been ratified by the Pristina Parliament as an international agreement, and for its implementation, it envisages the adoption of two additional legal acts – a decree to be adopted by the Pristina government (item no.2 of the ASM Document), and a statute to be adopted by the ASM Constituent Assembly (item no.3 of the ASM Document). The Pristina Constitutional Court found room for the assessment of the constitutionality of the ASM Document itself in its decision, but also the future assessment of the constitutionality of these additional acts, for which it provided appropriate guidelines in this decision.

Thus, the implementation of the Brussels documents indisputably leads to the formation of the ASM in accordance with the Framework Document, which envisages that the ASM shall:

• consist of municipalities with a majority Serb population (item no.1);
• be established by the statute, and disbanded only by the decision of its members, and formed according to the Pristina regulations (item no.2);
• have a structure similar to the structure of the existing Association of Kosovo Municipalities (item no.3)
• that members will have the right to cooperate in accordance with the European Charter of Local Self-Government and Pristina regulations, and have „full supervision“ in the areas of economic development, education, health, urbanism, and rural development (item no.4);
• that any additional competencies will be delegated by the central – Pristina authorities (item no.5); and
• that the ASM will be represented in the Community Consultative Council (item no.6).

However, any further normative development of the ASM in terms of its establishment, structure/organization, competencies, etc. must be done in accordance with the Pristina Constitution and laws, which derogate from the provisions of the ASM Document in a manner elaborated in the decision of the Pristina Constitutional Court, according to which the ASM is nothing more than a form of inter-municipal cooperation. Analyzes of Brussels documents in which Pristina authors participated reveal a similar point of view (example 1 and example 2). This is the part that Serbian politicians, without exception, overlook in their public addresses.

Bearing all this in mind, it seems that the Serbian authorities are not asking the right question. The question is not whether the ASM will be established, but whether the ASM will provide Serbs in KiM what they need. Forcing the obligation to establish the ASM is actually forcing form over essence. By fulfilling that obligation by the Pristina authorities in the manner envisaged by the decision of their Constitutional Court, the existing space for dialogue outside the Pristina legal system or the Pristina political scene will effectively disappear, because all obligations from the Framework Document, which became directly applicable by ratification, will be fulfilled. Afterward, any further solution in the dialogue will have to be either fully in line with Pristina regulations in order to be implemented or existing or new documents in the Pristina Parliament will have to be ratified. In any case, none of these solutions leads to the improvement of the position of Serbs in KiM, having in mind the decades-long continuity of the policy and regulations of the Pristina institutions.

2. On a recent decision of the Pristina Supreme Court

On the other hand, an interesting episode took place recently before the Pristina Supreme Court, which offers the basis for an alternative approach to these issues. One that does not seem to have been perceived by the majority of the Serbian professional community dealing with the Kosovo issue.

Namely, in the Pristina parliamentary elections held in February 2021, certain community parties, namely Roma, Ashkali, Egyptian, and Bosniak, received a large number of votes in municipalities with a majority Serb population. The rival parties of the communities found this suspicious, so they appealed against such results to the competent first instance body (the so-called Election Complaints and Appeals Panel), and the whole dispute ended up before the Pristina Supreme Court. This court eventually issued two judgments that invalidated these votes. Although the judgments were handed down by two different chambers of that court presided over by different judges, they contain similar or identical sentences and arguments, so they will be jointly analyzed (first judgment and second judgment).

Thus, the judgments state, citing the decisions of the first instance body, that the obtained votes were „in disproportion with the number of residents“ of the relevant communities in certain municipalities, and are therefore „invalid due to the fact that it is an undemocratic standard, that votes of voters from one community ensure the rights of representatives of other communities, and as such cannot be an objective link between the voter and the subject receiving these votes,” that it represents „deviation“ and „interferes with the will of the voters“ of a certain community, which „essentially means that it undermines the electoral process and its integrity.“ The divergence from the Pristina Constitution, as well as the „basic principles of the European democratic heritage“ is further determined, followed up by the subsequent sentence, which deserves to be quoted in its entirety: “Attempts to create such a practice of mass voting for another community represent a risk that could be abused by the majority community in the future, which would deprive minority communities of the objective right to represent themselves.“

These judgments actually bring to the fore the concept of consociational democracy, which is defined in them as „division of power between different social groups“, based on which „mechanisms of political sustainability are developed in a society with divisions by different groups, especially ethnic ones“, i.e. „political stability mechanisms in societies with different ethnic groups are developed.“

One such mechanism is the election of representatives of „communities“ to reserved seats in the Pristina Assembly, but the court interpreted that it is necessary to have an „objective link“ between the candidate and the community, or „ethnicity“, which can be verified by comparing the number the votes that the candidate received in a certain municipality with the number of municipal inhabitants that belong to that community.

As it does not exist in specific cases, the court annulled the votes that did not pass its test, thus protecting the „effective representation“ of certain communities, i.e. sanctioning „the phenomenon of mass voting of voters of one community for a certified candidate of another community“ and preventing „their right of representation“ from being „substantially (…) called into question“.

Setting aside the political reasons for passing such verdicts, the legal arguments set out in them can be used to improve the position of Serbs in KiM in the Pristina legal system.

In particular, the judgments recognize/confirm that consociational democracy is rooted in the Pristina constitutional framework, but a quick analysis can determine that this has not been done in full, i.e. that the element of segmental autonomy is lacking.

The notion of consociational democracy in political theory is primarily linked with the Dutch theorist Arend Lijphart, who defined this type of democracy by four characteristics: a) the existence of a grand coalition or the participation of representatives of all major groups in government; b) the possibility of the use of the veto by minority groups participating in government; c) proportionality, i.e. proportional representation of all groups in the exercise of power; and d) segmental autonomy or autonomy of minority groups, which may be territorial (Arend Lijphart, Democracy in plural societies: a comparative exploration, Yale University Press, 1977). Such an understanding of this concept is basically maintained even today, with a number of modifications (both by the author himself and various critics) and debates, as a phenomenon common to this science.

The question remains what kind of autonomy it would be, but it is certainly in line with modern theories of consociational democracy [10] to demand a certain type of territorial autonomy, as complementary to existing forms of power-sharing. Alternatively, non-territorial or personal autonomy may be required, which has been recommended in relatively recent times [11] in divided societies where groups – in this case ethnic groups – are not geographically concentrated.

In other words, these decisions point to a different understanding of the ASM, which is not explicitly recognized in the provisions of the Pristina constitution but is in its spirit. These decisions explicitly outline consociational democracy – the ASM as a form of territorial autonomy – not inter-municipal cooperation. Alternatively, instead of territorial autonomy, Serbs in the Pristina legal system can demand personal autonomy in the same spirit, especially having in mind the previously quoted note from spring 2004 (which was tragic for Serbs in KiM).

By adopting this notion, the focus of the current debate on the ASM would shift from the issue of form to the issue of content, i.e. defining the form of autonomy instead of forming a kind of inter-municipal cooperation. In addition, this notion is based on decisions that are politically inspired by the current Kosovo authorities, so they cannot be questioned without simultaneously questioning the credibility and legitimacy of those same authorities.

3. Conclusion

If the Serbian authorities continue to demand the implementation of the Framework Document and the formation of the ASM from the Pristina authorities, there is a great risk that the result will be the formation of the ASM in the manner envisaged by the 2015 decision of the Pristina Constitutional Court, with the simultaneous “caging” of Serbs in KiM within the framework of the Pristina legal system, which is unfavorable (and at times openly hostile) for them.

Alternatively, the demand for autonomy – territorial and/or personal – opens the possibility of defining the position of Serbs in KiM in a new way, unburdened by the restrictions of the 2015 Pristina Constitutional Court decision, but in the spirit of the Pristina constitution.

Thus, the redefined ASM does not have to consist of just ten municipalities currently being mentioned – it can also include rural areas with a majority Serb population in Metohija and central Kosovo, as well as Kosovsko Pomoravlje, which are currently outside those municipalities, while the rare Serbs who still live in urban areas (from one woman in Pec/Peja or several women in Djakovica/Gjakova to a large number of people in Kosovska Kamenica), as well as every future returnee, could have personal autonomy.

In addition, such an alternative request prevents Pristina from – by fulfilling a formal obligation – permanently preventing any substantial improvement of the position of Serbs in KiM. If Pristina were to refuse such a request, it would also refuse to adhere to the principles listed in the decision of its highest judicial body (although such a thing would be nothing fundamentally new – see the example of the monastery Visoki Decani), which would once again confirm that it is a legal and political temporality.

[10] Stephen Wolff (2011) Post-Conflict State Building: the debate on institutional choice, Third World Quarterly, 32:10, 1777-1802

[11] Arend Lijphart, “Constitutional Design for Divided Societies”, Journal of Democracy Volume 15, Number 2 April 2004

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