¹ A multiethnic commission has drafted the Constitution of Kosovo, adding that a huge international presence has been apparent in the drafting process. The same presence has been observed in the process of drafting the very essential laws of the new polity as well. See, e.g., Joseph Marko, The New Constitution of Kosovo from the Regional Perspective, 33 Rev. Cent. & E. Eur. L. 437 (2008); see also John Tunheim, Rule of Law and the Kosovo Constitution, 18 Minn. J. Int'l L. 371 (2009).Google Scholar

² Pablo Santolaya, The Procedure at the Spanish Constitutional Court in Cases Concerning Conflict Between Certain Authorities of Autonomous Regions, in Seminar on “Cases of Conflicts of Competence Between State Powers Before the Constitutional Court”, European Commission for Democracy Through Law (Venice Commission), 28 September 2000, CDL-JU (2000) 29, available at http://www.venice.coe.int/docs/2000/CDL-JU(2000)029-e.asp.Google Scholar

³ Herman Schwartz, Eastern Europe's Constitutional Courts, 9 J. Democracy 100 (1998).Google Scholar

⁴ See Jutta Limbach, The Concept of the Supremacy of the Constitution, 64 Mod. L. Rev. 1 (2001).Google Scholar

⁵ Luis Lopez-Guerra, The Role and Competences of the Constitutional Court, in The Role of the Constitutional Court in the Consolidation of the Rule of Law, European Commission for Democracy Through Law (Venice Commission), UniDem Seminar Bucharest, 8–10 June 1994, CDL-STD (1994) 010, available at http://www.venice.coe.int/docs/1994/CDL-STD(1994)010-e.asp.Google Scholar

⁶ Opinion on the Draft Law on the Constitutional Court and Corresponding Amendments of the Constitution of the Republic of Moldova, European Commission for Democracy Through Law (Venice Commission), Opinion no. 200/2002, 15 July 2002, CDL-AD (2002) 16.Google Scholar

⁷ Lopez-Guerra, supra note 5.Google Scholar

⁸ Constitution of the Republic of Kosovo art. 112, para. 1.Google Scholar

⁹ Id. at para. 2.Google Scholar

¹⁰ Constitution of the Republic of Kosovo art. 113, para. 2(1).Google Scholar

¹¹ Id. at para. 2(2).Google Scholar

¹² Id. at para. 3(1).Google Scholar

¹³ Id. at para. 3(2).Google Scholar

¹⁴ Id. at para. 3(3).Google Scholar

¹⁵ Id. at para. 3(4).Google Scholar

¹⁶ Id. at para. 3(5).Google Scholar

¹⁷ Id. at para. 3(4).Google Scholar

¹⁸ Id. at para. 3(5).Google Scholar

¹⁹ Id. at para. 3(6).Google Scholar

²⁰ Id. at para. 3(7).Google Scholar

²¹ Id. at para. 3(8).Google Scholar

²² Id. at para. 10.Google Scholar

²³ See supra note 6 (reporting on the issue of certainty in terms of jurisdiction and other fundamental issues relating to the Constitutional Court of the Republic of Moldova). “The list of subjects entitled to bring a case before the Constitutional Court should be provided for directly in the Constitution and not be left to the Law on the Constitutional Court (as set out in Article 135.3). The same is true for other fundamental questions relating to the Constitutional Court as immunities of the constitutional judges, guarantees of their independence, the termination of their mandates etc. Such issues require a constitutional rather than only statutory regulation.”Google Scholar

²⁴ Lopez-Guerra, supra note 5; see also supra note 6.Google Scholar

²⁵ Helmut Steinberger, Models of Constitutional Jurisdiction, European Commission for Democracy Through Law (Venice Commission), 1993, CDL-STD (1993) 002. Accordingly, Guerra argues that although the procedure to review the constitutionality of laws is a common standard for all constitutional courts, there are differences as regards the procedures followed. In his argument there are mainly three types of procedures for review of constitutionality of laws: (1) preventive control, (2) control by action, and (3) incidental control. See Lopez-Guerra supra note 5.Google Scholar

²⁶ For example, the French Constitution provides that legal acts of both houses of the parliament, before coming into force, should be referred to the Constitutional Council, which shall review the compatibility of the legal act concerned with the constitution. See La Constitution du 4 octobre 1958 [Const.] art. 61 (Fr.). An English version of the French Constitution is also available at http://www.assemblee-nationale.fr/english/8ab.asp. Therefore, such a procedure is purely a preventive review exercised by the court.Google Scholar

²⁷ Such an example is the “Administrative Instruction No. 14/2008 for the Composition of draft-laws and sub-legislative acts.” This Administrative Instruction was adopted on the 30 July 2008 under the Kosovo Constitution's authority. This Administrative Instruction determines the legal techniques to be followed during the composition of legal acts. As such, its content is general and abstract; therefore, administrative instructions can be considered lower-than-law legal acts, with a general content.Google Scholar

²⁸ An example of an executive decision of the Government, as opposed to the decree of the Prime Minister, is the “Executive Decision No. 03/41 of 23/October/2008 for Appointment of the Temporary Auditing Commission for the KEC.” The legal authority issuing this decision is the Government of Kosovo, as opposed to the Prime Minister decrees.Google Scholar

²⁹ Steinberger, supra note 25.Google Scholar

³⁰ Opinion on the Draft Law on the Constitutional Court of Montenegro, European Commission for Democracy Through Law (Venice Commission), Opinion no. 479/2008, 24 October 2008, CDL-AD (2008) 030. However, in the case of Austrian Constitutional Court, the latter is bound by the request of the appellant, and therefore the court is not authorized to act upon its discretion.Google Scholar

³¹ Opinion on the Constitutional Law on the Constitutional Court of the Republic of Croatia, European Commission for Democracy Through Law (Venice Commission), 22 January 2001, CDL-INF (2001) 2.Google Scholar

³² Law on the Constitutional Court of the Republic of Kosovo, L. No. 03/L-121 of 16 December 2008, art. 29, para. 1.Google Scholar

³³ Constitution of the Republic of Kosovo art. 113, para. 5.Google Scholar

³⁴ Supra note 6. In this case, the report of the Venice Commission stipulates that the number of deputies (5 deputies, roughly 10% of the total number of the deputies) needed to initiate a procedure before the constitutional court is too low (it should be noted that the Parliament of the Republic of Moldova is composed of 101 members), and therefore, such a threshold might overburden the constitutional court.Google Scholar

³⁵ Supra note 28.Google Scholar

³⁶ Lee Epstein, Jack Knight & Olga Shvetsova, The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government, 35 Law & Soc'y Rev. 117, 153 (2001) (quoting Interview by Leonid Nikitinsky with Boris Ebzeev, Justice of the Constitutional Court of the Russian Federation at Winter E. Eur. Const. Rev. 83–85, 87 (1997).Google Scholar

³⁷ Steinberger, supra note 25. As regards the competence of the Constitutional Court to initiate the review procedure ex-officio, Steinberger considers that this type of procedure is quite unusual for a Constitutional Court. Also, regarding the latter see supra note 30; Comments on the Draft Law on the Constitutional Court of the Republic of Serbia, European Commission for Democracy Through Law (Venice Commission), Opinion no. 445/2007, 7 November 2007, CDL-AD (2007) 039.Google Scholar

³⁸ Comments on the Draft Law on the Constitutional Court of the Republic of Serbia, European Commission for Democracy Through Law (Venice Commission), Opinion no. 445/2007, 7 November 2007, CDL-AD (2007) 039. In this regard, Constitutional Court Act of the Republic of Serbia provides for a special categories of participants described as “authorized propounders,” which attributes to the latter a right to engage in proceedings of the court at any time.Google Scholar

³⁹ Comments by Mr. Grabenwarter, in Comments on the Draft Law on the Constitutional Court of the Republic of Serbia, European Commission for Democracy Through Law (Venice Commission), Opinion no. 445/2007, 7 November 2007, CDL-AD (2007) 039, p. 4.Google Scholar

⁴⁰ See Law on the Constitutional Court of the Republic of Serbia, art. 66, http://www.ustavni.sud.rs/page/100030/cnt/law-on-the-constitutional-court.en-GB.html (accessed on 1 October 2009). Unlike the Kosovo Law on Constitutional Court, the Serbian Law on Constitutional Court establishes the possibility of the Serbian Constitutional Court to review the constitutionality of laws before their promulgation, thus giving to the Court the possibility of issuing a decision upon the constitutionality of the draft-law concerned prior to adoption from the parliament.Google Scholar

⁴¹ In the light of Albanian Constitutional Court jurisdiction, by contrast to the Kosovo Constitutional Court jurisdiction, there are four institutional actors that might proceed the constitutional review of a law: the President of Republic, the Prime Minister, less than 1/5 of the Assembly, and the Chairman of the High State Audit. See Law on the Organization and Functioning of the Constitutional Court of the Republic of Albania, L. No. 8577 of 10 February 2000. Contrary to Albania, the Croatian Constitutional Court might be activated when a law's constitutionality is to be checked by these institutional actors: 1/5 of the Parliament, any committee of the Parliament, the President of Republic, the Government, the Supreme Court (or any court, with exceptions), and the Ombudsman. See The Constitutional Act on the Constitutional Court of the Republic of Croatia, Narodne Novine No. 49/02 of 3 May 2002, art. 35. With the broadest range of institutions, Serbian Law on Constitutional Court allows these institutional actors to proceed files at the Constitutional Court: the enactor of a law, statute of an autonomous province, or local self-government entity; political parties, trade union organizations or citizens’ associations whose statute or other general act is being assessed for constitutionality and legality or whose prohibition of activity is being decided upon, etc. See Law on the Constitutional Court of the Republic of Serbia, art. 66, http://www.ustavni.sud.rs/page/100030/cnt/law-on-the-constitutional-court.en-GB.html (accessed on 1 October 2009). Similarly, the Slovenian law allows these institutions to raise constitutional review procedures: the National Assembly; the National Council; the Government; the Ombudsman for human rights; the Information Commissioner; the Bank of Slovenia or the Court of Audit; the State Attorney General; representative bodies of local communities; representative associations of local communities; national representative trade unions. See The Constitutional Court Act, Official Gazette of the Republic of Slovenia, Nos. 15/94, 15/07, and 64/07, art. 21.Google Scholar

⁴² During the Kosovo's Ceku Government, for instance, the Prime Minister Agim Ceku faced essential problems as regards the direction of the cabinet of ministers. Since the Prime Minister Ceku came from a party that had only seven parliamentarian votes—though it was a part of the coalition of parties holding the government—he was not able to direct the ministers and the cabinet as a whole. As a result, in such circumstances, the Prime Minister alone would not be able to represent the whole cabinet of ministers as most of the ministers would disobey his directions and would practically dismiss his rulings. To this extent, the lack of the right of Prime Minister to contest or to bring a question before the Constitutional Court is very significant, given that the Prime Minister's aim to bring a question before the Court is not likely to be achieved through the cabinet of ministers, since the majority of them could refuse it.Google Scholar

⁴³ Slovenian Law does not permit any authorized institution or individual to initiate the constitutional review proceedings at the Constitutional Court if the law or legal act concerned has been adopted by the “initiator” itself. See The Constitutional Court Act, Official Gazette of the Republic of Slovenia, No. 15/94, 15/07 and 64/07, art. 23(a), para. 2.Google Scholar

⁴⁴ Serbian law uses the same logic regarding the possibility of central institutions, in this case the Government of Serbia, to request from the Constitutional Court to review the constitutionality or legality of local governments’ decisions. Moreover, the Serbian law goes further when stating that any decision of autonomous provinces may be assessed for its compliance with the constitution and laws. See Law on the Constitutional Court of the Republic of Serbia, art. 67, http://www.ustavni.sud.rs/page/100030/cnt/law-on-the-constitutional-court.en-GB.html (accessed on 1 October 2009).Google Scholar

⁴⁵ Constitution of the Republic of Kosovo art. 113, para. 4.Google Scholar

⁴⁶ Unlike the Kosovo Constitution, the Slovenian law does specify that representative bodies of local communities may initiate the procedure in the Constitutional Court to review the constitutionality of a law, thus holding a safer environment of constitutional protection for local communities constitutional rights than in the Kosovo case. See The Constitutional Court Act art. 23(a), para. 1.Google Scholar

⁴⁷ Steinberger, supra note 25.Google Scholar

⁴⁸ “Municipality” is not the term used to specify the local institution, but the local administrative territory. As such, municipalities are governed by a major and an assembly, elected separately. Therefore, neither the Constitution nor the Law on Constitutional Court does specify which of these bodies has the right to initiate such a procedure. The argument follows because there might be a situation where a major contests the constitutionality of a given act in the Constitutional Court whereas the local assembly disagrees with the major's referral. At those potential cases, the jurisdiction of the Constitutional Court might be then perplexed towards the two different inquiries coming from the same municipality.Google Scholar

⁴⁹ Law on the Constitutional Court of the Republic of Kosovo, L. No. 03/L-121 of 16 December 2008, art. 29, para. 2.Google Scholar

⁵⁰ See supra note 30. However, in the case of Austrian Constitutional Court, the latter is bound by the request of the appellant. Therefore, the court is not authorized to act upon its discretion.Google Scholar

⁵¹ See Law on the Constitutional Court of the Republic of Kosovo, L. No. 03/L-121 of 16 December 2008, art. 27.Google Scholar

⁵² The Serbian Constitutional Court's jurisdiction is more tangible when it comes to the extent of jurisdiction exercised towards the petitioner's request. As such, “in the procedure of assessing constitutionality and legality, the Constitutional Court is not constrained by the request of the authorized propounder, i.e. initiator. Where the authorized propounder, or initiator, abandons the request, i.e. initiative, the Constitutional Court shall continue the procedure of assessing constitutionality or legality if it finds grounds for doing so.” See Law on the Constitutional Court of the Republic of Serbia, art. 54, http://www.ustavni.sud.rs/page/100030/cnt/law-on-the-constitutional-court.en-GB.html (accessed on 1 October 2009).Google Scholar

⁵³ Constitution of the Republic of Kosovo art. 113, para. 3(1).Google Scholar

⁵⁴ Law on the Constitutional Court of the Republic of Kosovo, L. No. 03/L-121 of 16 December 2008, art. 31.Google Scholar

⁵⁵ Another important issue qualified as a conflict of competence is the case where none of the state authorities accept to retain or exercise a specific competence. Nonetheless, the Slovenian Constitutional Court Act has determined the Constitutional Court's jurisdiction to review even such disputes. See The Constitutional Court Act, Official Gazette of the Republic of Slovenia, No. 15/94, 15/07, and 64/07, art. 61, para. 2.Google Scholar

⁵⁶ The Montenegro Constitutional Court is authorized to resolve the conflict of competences from three institutional categories: (1) central institutions’ conflicts; (2) local institutions’ conflicts of competences; and (3) conflict of competences between central and local institutions. See Constitution of the Republic of Montenegro art. 149, para. 5.Google Scholar

⁵⁷ Reinhild Huppmann, The procedure at the Austrian Constitutional Court in Cases Concerning Disputes Between Different Powers, in Seminar on “Cases of Conflicts of Competence Between State Powers before the Constitutional Court”, European Commission for Democracy Through Law (Venice Commission), 8 June 2000, CDL-JU (2000) 31.Google Scholar

⁵⁸ The possibility of local governments to initiate a procedure to contest the constitutionality of laws in cases where their interest or competence is diminished is foreseen in the Albanian Law, Law on the Organization and Functioning of the Constitutional Court of the Republic of Albania, L. No. 8577 of 10 February 2000, art. 49, para. 2, Slovenian Law, The Constitutional Court Act, Official Gazette of the Republic of Slovenia, No. 15/94, 15/07, and 64/07, art. 23(a), para. 1, and Croatian Law, The Constitutional Act on the Constitutional Court of the Republic of Croatia, Narodne Novine No. 49/02 of 3 May 2002, art. 36.Google Scholar

⁵⁹ See supra notes 30, 38.Google Scholar

⁶⁰ It should be noted that, in the cases of Albanian Constitutional Court, Montenegro Constitutional Court, Serbian Constitutional Court and Slovenian Constitutional Court, the jurisdiction is not limited only to the conflict of competencies between the branches of government but is extended to the conflict of competences between central and local authorities also. See Constitution of the Republic of Montenegro art. 149, para. 5; Constitution of the Republic of Serbia art. 167, paras. 2–3; Constitution of the Republic of Slovenia art. 160; Law on the Organization and Functioning of the Constitutional Court of the Republic of Albania, L. No. 8577 of 10 February 2000, art. 54, para. 1.Google Scholar

⁶¹ Steinberger, supra note 25.Google Scholar

⁶² Id. Google Scholar

⁶³ Lopez-Guerra, supra note 5.Google Scholar

⁶⁴ Constitution of the Republic of Kosovo art. 113, para. 3(2).Google Scholar

⁶⁵ Lopez-Guerra, supra note 5.Google Scholar

⁶⁶ Law on the Constitutional Court of the Republic of Kosovo, L. No. 03/L-121 of 16 December 2008, art. 33.Google Scholar

⁶⁷ Law on the Constitutional Court of the Republic of Kosovo, L. No. 03/L-121 of 16 December 2008, art. 34.Google Scholar

⁶⁸ It should be noted that the competence of Constitutional Court to review the compatibility of proposed referendum with the Constitution is also foreseen at the Constitutional Court Act of Croatia. See The Constitutional Act on the Constitutional Court of the Republic of Croatia, Narodne Novine No. 49/02 of 3 May 2002, art. 87–96.Google Scholar

⁶⁹ Constitution of the Republic of Kosovo art. 81, para. 2.Google Scholar

⁷⁰ Constitution of the Republic of Kosovo art. 65, para. 3.Google Scholar

⁷¹ See Constitution of the Republic of Kosovo art. 81.Google Scholar

⁷² Constitution of the Republic of Kosovo art. 113, para. 3(3).Google Scholar

⁷³ This type of jurisdiction is unique among Western Balkans constitutional courts’ jurisdictions, notwithstanding a small exception in the Montenegro Constitutional Court jurisdiction. See Constitution of the Republic of Montenegro art. 149, para. 8. The Kosovo Constitution provides this authorization in light of making the suspension of the Constitution during the state-of-emergency impossible. From that perspective, the Constitutional Court of Kosovo stands as the “saver” of the Constitution during a potential state-of-emergency.Google Scholar

⁷⁴ Steinberger, supra note 25.Google Scholar

⁷⁵ Constitution of the Republic of Kosovo art. 131, para. 1.Google Scholar

⁷⁶ Constitution of the Republic of Kosovo art. 113, para. 3(3).Google Scholar

⁷⁷ Id. at para. 3(4).Google Scholar

⁷⁸ Constitution of the Republic of Kosovo art. 16, para. 1.Google Scholar

⁷⁹ Id. at para. 2.Google Scholar

⁸⁰ Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force 27 January 1980, Art. 56, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.Google Scholar

⁸¹ Supra note 38.Google Scholar

⁸² Constitution of the Republic of Kosovo art. 113, para. 3(5).Google Scholar

⁸³ Steinberger, supra note 25.Google Scholar

⁸⁴ See Lopez-Guerra, supra note 5; Steinberger, supra note 25.Google Scholar

⁸⁵ The jurisdiction of the Croatian Constitutional Court allows a broader range of actors to be involved in the process of judging the constitutionality of elections. As such, “political parties, candidates, not less than 100 voters or not less than 5 percent of voters of the constituency in which the elections are held…” can initiate the concerned procedure in the Constitutional Court of Croatia. The Constitutional Act on the Constitutional Court of the Republic of Croatia, Narodne Novine No. 49/02 of 3 May 2002, art. 88. Meanwhile, in the Slovenian case, “political parties, candidates, not less than 100 voters or not less than 5 percent of voters of the constituency in which the elections are held, have the right to submit an appeal against the ruling of the competent electoral commission to the Constitutional Court.” See The Constitutional Court Act, Official Gazette of the Republic of Slovenia, No. 15/94, 15/07, and 64/07, art. 91, para. 1. In addition, a “motion [to the Constitutional Court of Serbia] for deciding on electoral disputes for which jurisdiction of a court is not defined by law may be submitted by: any elector, candidate for President of the Republic, candidate for the member of Parliament or Municipality Council member, as well as those who nominate candidates.” See Law on the Constitutional Court of the Republic of Serbia, art. 75, http://www.ustavni.sud.rs/page/100030/cnt/law-on-the-constitutional-court.en-GB.html (accessed on 1 October 2009).Google Scholar

⁸⁶ Constitution of the Republic of Kosovo art. 113, para. 6.Google Scholar

⁸⁷ Many, if not all, would find the rationale after this within the argument that the President of Republic is the Head of State, and not just another political contender or actor.Google Scholar

⁸⁸ Constitution of the Republic of Kosovo art. 113, para. 7.Google Scholar

⁸⁹ Law on the Constitutional Court of the Republic of Kosovo, L. No. 03/L-121 of 16 December 2008, art. 47, paras. 1–2.Google Scholar

⁹⁰ It should be noted that Serbian Law on Constitutional Court, the Constitutional Act on Constitutional Court of Croatia and Constitutional Court Act of Slovenia have determined that individuals may contest not only the decision of public authorities but also the decisions of organizations vested with public authority.Google Scholar

⁹¹ Aivars Endzinš, The Principle of Separation of Powers and the Experience of the Constitutional Court of the Republic of Latvia, in Seminar on “Cases of Conflicts of Competence Between State Powers Before the Constitutional Court”, European Commission for Democracy Through Law (Venice Commission), 8 June 2000, CDL-JU (2000) 30; Lopez-Guerra, supra note 5. Therefore, Guerra (above) considers that “[i]n the constitutional complaint in Spain and Germany, it is not the constitutionality of a law applied by a judge or by the Administration which is under consideration, but rather if the fundamental rights of one or various individuals have been violated by such application. Thus, it is an act which is being judged, rather than a norm.”Google Scholar

⁹² Steinberger, supra note 25.Google Scholar

⁹³ Lopez-Guerra, supra note 5.Google Scholar

⁹⁴ Steinberger posits that “[s]olutions vary from country to country, from including all acts of domestic public power unto limitations to specific kinds of acts (norms of various categories, court decisions, administrative acts). It may appear appropriate, to extend jurisdiction on constitutional complaints to all acts of public authority, i.e. administrative acts, decisions and injunctions of the judiciary and even legislative acts including statutes, sub-legislative norms and ordinances of autonomous bodies.” Steinberger, supra note 25.Google Scholar

⁹⁵ Constitution of the Republic of Kosovo art. 113, para. 8.Google Scholar

⁹⁶ Law on the Constitutional Court of the Republic of Kosovo, L. No. 03/L-121 of 16 December 2008, art. 51, para. 1.Google Scholar

⁹⁷ Id. Google Scholar

⁹⁸ Constitution of the Republic of Kosovo art. 113, para. 9.Google Scholar

⁹⁹ Steinberger, supra note 25.Google Scholar

¹⁰⁰ The Croatian Constitution authorizes its Constitutional Court to “evaluate the constitutionality of laws and constitutionality and legality of other regulations….” Constitution of the Republic of Croatia art. 125. In addition, the Constitutional Court of Montenegro is authorized to check the “conformity of laws with the Constitution and… conformity of other regulations and general acts with the Constitution and the law.” Constitution of the Republic of Montenegro art. 149, para. 1(2). Similarly, the Constitutional Court of Serbia has the jurisdiction to check the “compliance of other general acts with the law.” Constitution of the Republic of Serbia art. 167, paras. 3–5. Moreover, Slovenian Constitutional Court jurisdiction consists of the same right. The Slovenian Constitution establishes that Constitutional Court shall have the jurisdiction on “matters related to the conformity of regulations with this Constitution and with statute.” Constitution of the Republic of Serbia art. 160.Google Scholar

¹⁰¹ The ex-officio powers of constitutional courts have been observed in the Croatia, Serbia and Montenegro cases. Constitutional Court Act of Croatia determines that the “Constitutional Court itself may decide to institute proceedings to review the constitutionality of the law and the review of constitutionality and legality of other regulations.” The Constitutional Act on the Constitutional Court of the Republic of Croatia, Narodne Novine No. 49/02 of 3 May 2002, art. 38, para. 2. Similarly, Serbian Law on Constitutional Court establishes that “procedure for assessing the constitutionality or legality of general act may be initiated by the Constitutional Court itself….” Law on the Constitutional Court of the Republic of Serbia, art. 50, http://www.ustavni.sud.rs/page/100030/cnt/law-on-the-constitutional-court.en-GB.htm (accessed on 1 October 2009). For the Montenegro case, see Constitution of the Republic of Montenegro art. 150.Google Scholar

¹⁰² See supra notes 30 and 38 for more upon the comments on the constitutional courts’ ex-officio powers.Google Scholar

¹⁰³ Supra note 30.Google Scholar

¹⁰⁴ The Serbian Constitutional Court is empowered with the right to check the constitutionality of a law before its promulgation. See Law on the Constitutional Court of the Republic of Serbia, art. 50, http://www.ustavni.sud.rs/page/100030/cnt/law-on-the-constitutional-court.en-GB.htm (accessed on 1 October 2009).Google Scholar

¹⁰⁵ See Steinberger, supra note 25; see also supra note 38.Google Scholar

¹⁰⁶ The Albanian Constitutional Court possesses the jurisdiction to deal with the international agreements constitutionality. As such, “the Constitutional Court considers the compatibility of the International Agreement with the Constitution before they are rectified.” Law on the Organization and Functioning of the Constitutional Court of the Republic of Albania, L. No. 8577 of 10 February 2000, art. 52. Similarly, the Slovenian case shows that “in the process of ratifying a treaty, the Constitutional Court, on the proposal of the President of the Republic, the Government, or a third of the deputies of the National Assembly, issues an opinion on the conformity of such treaty with the Constitution. The Constitutional Court adopts such opinion at a closed session.” See The Constitutional Court Act, Official Gazette of the Republic of Slovenia, No. 15/94, 15/07, and 64/07, art. 70.Google Scholar

¹⁰⁷ All of the Western Balkans constitutions provide this power for their constitutional courts. Just as a point of reference, the Albanian Constitutional Court has a jurisdiction to decide on The Constitutional Court reviews and decides: “a. whether the political party or organization is founded in accordance with the constitutional provisions, and b. whether the activity of the political party or organization is in conformity with the Constitution.” Law on the Organization and Functioning of the Constitutional Court of the Republic of Albania, L. No. 8577 of 10 February 2000, art. 58; Albanian Constitution art. 131, para. 2. Moreover, the Serbian Constitution goes too far by prescribing that “the Constitutional Court decides on the prohibition of the activity of political parties, trade union organizations, citizens’ associations or religious communities on the basis of a proposal of the Government, the Republican Public Prosecutor or authority in charge of the registration of political parties, trade union organizations, citizens’ associations or religious communities.” See Law on the Constitutional Court of the Republic of Serbia, art. 80, http://www.ustavni.sud.rs/page/100030/cnt/law-on-the-constitutional-court.en-GB.htm (accessed on 1 October 2009); see also Constitution of the Republic of Serbia art. 167, para. 5.Google Scholar

¹⁰⁸ See supra note 6; Guidelines and Explanatory Report on Legislation on Political Parties: Some Specific Issues, European Commission for Democracy Through Law (Venice Commission), Study no. 247/2004, 15 March 2004, CDL-AD (2004) 007.Google Scholar

¹⁰⁹ Steinberger, supra note 25.Google Scholar

¹¹⁰ Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe 244 (2000).Google Scholar

¹¹¹ To refer to this jurisdiction in the Albanian Constitutional Court case, see Law on the Organization and Functioning of the Constitutional Court of the Republic of Albania, L. No. 8577 of 10 February 2000, art. 66. To refer to this jurisdiction in the Serbian Constitutional Court case, see Law on the Constitutional Court of the Republic of Serbia, art. 79, http://www.ustavni.sud.rs/page/100030/cnt/law-on-the-constitutional-court.en-GB.htm (accessed on 1 October 2009). See also The Constitutional Court Act, Official Gazette of the Republic of Slovenia, No. 15/94, 15/07, and 64/07, art. 69.Google Scholar

¹¹² For comparison reasons, it is noted that in the Serbian case, “judges, public prosecutors and deputy public prosecutors may file appeals to the Constitutional Court against decisions on termination of office within 30 days of the day of being served the decision.” Law on the Constitutional Court of the Republic of Serbia, art. 99, http://www.ustavni.sud.rs/page/100030/cnt/law-on-the-constitutional-court.en-GB.htm (accessed on 1 October 2009). Similarly, in the Croatian case, “a judge (hereinafter: the appellant) may appeal to the Constitutional Court against the decision to relieve him of office within a term of 15 days after the disputed decision has been delivered.” The Constitutional Act on the Constitutional Court of the Republic of Croatia, Narodne Novine No. 49/02 of 3 May 2002, art. 97.Google Scholar

¹¹³ The Croatian “Constitutional Court shall monitor the execution of constitutionality and legality and report to the Croatian Parliament about any kind of unconstitutionality and illegality it has observed.” The Constitutional Act on the Constitutional Court of the Republic of Croatia, Narodne Novine No. 49/02 of 3 May 2002, art. 104. The Montenegro Constitutional Court has the same power. Constitution of the Republic of Montenegro art. 149.Google Scholar

¹¹⁴ Laszlo Solyom & Georg Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court 85 (2000).Google Scholar