Title: The constitution comes second: how the Constitutional Court of Kosovo disregards the supremacy of the constitution

Authors: Jeton Hasani

Addresses: Kosovo Law Institute, Prishtina, Kosovo

Abstract: This article examines the Kosovo Constitutional Court's controversial practice of overlooking the Kosovo Constitution's normative supremacy in its jurisprudence. While all constitutional organs can participate in ensuring constitutional supremacy, the role of a Constitutional Court in this regard is unsurpassed as the final interpreter of a constitution's meaning. That said, rather than carefully following the Kosovo Constitution, the Kosovo Constitutional Court frequently relies on other legal sources to reach a decision, although they might directly contradict the Constitution. These sources include ordinary legislation, foreign legal experience, Venice Commission materials, and ECtHR's case-law (not on Kosovo). Often, this practice results in diminished human rights protection, as evidenced best in the Etem Arifi case.

Keywords: Kosovo Constitutional Court; constitutional supremacy; normative hierarchy; constitutional interpretation; comparative constitutional law; human rights; judicial review; Kosovo.

DOI: 10.1504/IJHRCS.2023.127637

International Journal of Human Rights and Constitutional Studies, 2023 Vol.10 No.1, pp.23 - 36

Received: 04 Nov 2021
Accepted: 24 Nov 2021
Published online: 13 Dec 2022 *