Kosovo 2008 Constitution (reviewed 2016)

Chapter VII. Justice System

Article 102. General Principles of the Judicial System

1. Judicial power in the Republic of Kosovo is exercised by the courts.
2. The judicial power is unique, independent, fair, apolitical and impartial and ensures equal access to the courts.
3. Courts shall adjudicate based on the Constitution and the law.
4. Judges shall be independent and impartial in exercising their functions.
5. The right to appeal a judicial decision is guaranteed unless otherwise provided by law. The right to extraordinary legal remedies is regulated by law. The law may allow the right to refer a case directly to the Supreme Court, in which case there would be no right of appeal.

Article 103. Organization and Jurisdiction of Courts

1. Organization, functioning and jurisdiction of the Supreme Court and other courts shall be regulated by law.
2. The Supreme Court of Kosovo is the highest judicial authority.
3. At least fifteen percent (15%) of the judges of the Supreme Court, but not fewer than three (3) judges, shall be from Communities that are not in the majority in Kosovo.
4. The President of the Supreme Court of Kosovo shall be appointed and dismissed by the President of the Republic of Kosovo from among the judges of the Supreme Court for a non-renewable term of seven (7) years upon proposal by the Kosovo Judicial Council for the appointment or dismissal.
5. Presidents of all other courts shall be appointed in the manner provided by law.
6. At least fifteen percent (15%) of the judges from any other court established with appeal jurisdiction, but not fewer than two (2) judges, shall be from Communities that are not in the majority in Kosovo.
7. Specialized courts may be established by law when necessary, but no extraordinary court may ever be created.

Article 104. Appointment and Removal of Judges

1. The President of the Republic of Kosovo shall appoint, reappoint and dismiss judges upon the proposal of the Kosovo Judicial Council.
2. The composition of the judiciary shall reflect the ethnic diversity of Kosovo and internationally recognized principles of gender equality.
3. The composition of the courts shall reflect the ethnic composition of the territorial jurisdiction of the respective court. Before making a proposal for appointment or reappointment, the Kosovo Judicial Council consults with the respective court.
4. Judges may be removed from office upon conviction of a serious criminal offense or for serious neglect of duties.
5. A judge has the right to directly appeal a decision of dismissal to the Kosovo Supreme Court.
6. Judges may not be transferred against their will unless otherwise provided by law for the efficient operation of the judiciary or disciplinary measures.

Article 105. Mandate and Reappointment

1. The initial mandate for judges shall be three years. The reappointment mandate is permanent until the retirement age as determined by law or unless removed in accordance with law.
2. The criteria and procedures to reappoint a judge shall be determined by the Kosovo Judicial Council and they may be different in degree from the criteria used for the removal of judges.

Article 106. Incompatibility

1. A judge may not perform any function in any state institution outside of the judiciary, become involved in any political activity, or be involved in any other activity prohibited by law.
2. Judges are not permitted to assume any responsibilities or take on any functions that would in any way be inconsistent with the principles of independence and impartiality of the role of a judge.

Article 107. Immunity

1. Judges, including lay-judges, shall be immune from prosecution, civil lawsuit and dismissal for actions taken, decisions made or opinions expressed that are within the scope of their responsibilities as judges.
2. Judges, including lay-judges, shall not enjoy immunity and may be removed from office if they have committed an intentional violation of the law.
3. When a judge is indicted or arrested, notice must be given to the Kosovo Judicial Council without delay.

Article 108. Kosovo Judicial Council

1. The Kosovo Judicial Council shall ensure the independence and impartiality of the judicial system.
2. The Kosovo Judicial Council is a fully independent institution in the performance of its functions. The Kosovo Judicial Council shall ensure that the Kosovo courts are independent, professional and impartial and fully reflect the multi-ethnic nature of Kosovo and follow the principles of gender equality. The Kosovo Judicial Council shall give preference in the appointment of judges to members of Communities that are underrepresented in the judiciary as provided by law.
3. The Kosovo Judicial Council is responsible for recruiting and proposing candidates for appointment and reappointment to judicial office. The Kosovo Judicial Council is also responsible for transfer and disciplinary proceedings of judges.
4. Proposals for appointments of judges must be made on the basis of an open appointment process, on the basis of the merit of the candidates, and the proposals shall reflect principles of gender equality and the ethnic composition of the territorial jurisdiction of the respective court. All candidates must fulfill the selection criteria provided by law.
5. The Kosovo Judicial Council is responsible for conducting judicial inspections, judicial administration, developing court rules in accordance with the law, hiring and supervising court administrators, developing and overseeing the budget of the judiciary, determining the number of judges in each jurisdiction and making recommendations for the establishment of new courts. New courts shall be established according to law.
6. The Kosovo Judicial Council shall be composed of thirteen (13) members, all of whom shall possess relevant professional qualifications and expertise. Members shall be elected for a term of five (5) years and shall be chosen in the following manner:
   1. Seven (7) members shall be judges elected by the members of the judiciary.[As amended by Constitutional Amendment 25, published in the OFFICIAL GAZETTE OF THE REPUBLIC OF KOSOVA / No. 9 / 11 MARCH 2016, PRISTINA]
   2. Two (2) members shall be elected by the deputies of the Assembly, holding seats attributed during the general distribution of seats and at least one of these two must be a judge.[As amended by Constitutional Amendment 25, published in the OFFICIAL GAZETTE OF THE REPUBLIC OF KOSOVA / No. 9 / 11 MARCH 2016, PRISTINA]
   3. two (2) members shall be elected by the deputies of the Assembly holding reserved or guaranteed seats for the Kosovo Serb community and at least one of the two must be a judge;
   4. two (2) members shall be elected by the deputies of the Assembly holding reserved or guaranteed seats for other Communities and at least one of the two must be a judge.
   5. Incompatibilities with membership on the Kosovo Judicial Council shall be regulated by law.
7. The Kosovo Judicial Council elects from its members a Chair and Vice Chair each for a term of three (3) years. Election to these offices does not extend the mandate of the members of the Kosovo Judicial Council.
8. The Chair of the Kosovo Judicial Council addresses the Assembly of the Republic of Kosovo at least once a year regarding the Judicial System.
9. Candidates for judicial positions that are reserved for members of Communities that are not in the majority in Kosovo may only be recommended for appointment by the majority of members of the Council elected by Assembly deputies holding seats reserved or guaranteed for members of communities that are not in the majority in Kosovo. If this group of Council members fails to recommend a candidate for a judicial position in two consecutive sessions of the Council, any Council member may recommend a candidate for that position.
10. Candidates for judicial positions within basic courts, the jurisdiction of which exclusively includes the territory of one or more municipalities in which the majority of the population belongs to the Kosovo Serb community, may only be recommended for appointment by the two members of the Council elected by Assembly deputies holding seats reserved or guaranteed for the Serb Community in the Republic of Kosovo acting jointly and unanimously. If these two (2) members fail to recommend a judicial candidate for two consecutive sessions of the Kosovo Judicial Council, any Kosovo Judicial Council member may recommend a candidate for that position.

Article 109. State Prosecutor

1. The State Prosecutor is an independent institution with authority and responsibility for the prosecution of persons charged with committing criminal acts and other acts specified by law.
2. The State Prosecutor is an impartial institution and acts in accordance with the Constitution and the law.
3. The organization, competencies and duties of the State Prosecutor shall be defined by law.
4. The State Prosecutor shall reflect the multiethnic composition of the Republic of Kosovo and shall respect the principles of gender equality.
5. The mandate for prosecutors shall be three years. The reappointment mandate is permanent until the retirement age as determined by law or unless removed in accordance with law.
6. Prosecutors may be removed from office upon conviction of a serious criminal offense or for serious neglect of duties.
7. The Chief State Prosecutor shall be appointed and dismissed by the President of the Republic of Kosovo upon the proposal of the Kosovo Prosecutorial Council. The mandate of the Chief State Prosecutor is seven (7) years, without the possibility of reappointment.

Article 110. Kosovo Prosecutorial Council

1. The Kosovo Prosecutorial Council is a fully independent institution in the performance of its functions in accordance with law. The Kosovo Prosecutorial Council shall ensure that all persons have equal access to justice. The Kosovo Prosecutorial Council shall ensure that the State Prosecutor is independent, professional and impartial and reflects the multi-ethnic nature of Kosovo and the principles of gender equality.
2. The Kosovo Prosecutorial Council shall recruit, propose, promote, transfer, reappoint and discipline prosecutors in a manner provided by law. The Council shall give preference for appointment as prosecutors to members of underrepresented Communities as provided by law. All candidates shall fulfill the selection criteria as provided by law.
3. Proposals for appointments of prosecutors must be made on the basis of an open appointment process, on the basis of the merit of the candidates, and the proposals shall reflect principles of gender equality and the ethnic composition of the relevant territorial jurisdiction.
4. The composition of Kosovo Prosecutorial Council, as well as provisions regarding appointment, removal, term of office, organizational structure and rules of procedure, shall be determined by law.

Article 111. Advocacy

1. Advocacy is an independent profession, which shall provide services in the manner provided by law.
2. The manners by which the right of exercising the profession of the advocate is obtained and lost shall be determined by law.