The Kosovo Specialist Chambers embody a remarkable project involving elements of the domestic law... more The Kosovo Specialist Chambers embody a remarkable project involving elements of the domestic law of the Republic of Kosovo, the EU’s external relations law, and international criminal law. The Chambers’ hybrid nature is not only unique, but also atypical in regards to its influence in Kosovo’s constitutional order. The Specialist Constitutional Chamber is one of the instances of the Kosovo Specialist Chambers sitting in the Hague. The Specialist Constitutional Chamber resembles Kosovo’s Constitutional Court on a specific, though exclusive, area of law—the law surrounding the court in general. The two courts not only exercise the same generic function—on the basis of exclusive material criteria—but also possibly parallel and compete with each other. The relationship between the “two courts” is at best explained with the term “fragmentation of constitutional jurisdiction.” While the two courts are forced to endure under the same normative roof—the Constitution—they inherently exercis...
Constitutional Courts in the former communist countries have been instruments of change following... more Constitutional Courts in the former communist countries have been instruments of change following the collapse of communism. Their establishment and operation proved to be very useful in promoting the rule of law and constitutionalism. Their establishment, however, also proved to be a source of tension between them and the ordinary courts of higher instance. In some cases, it was the legal and constitutional framework that stood behind this tension, but in most cases it was the very legal culture and the local histories that accounted for that tension. Kosovo and its Constitutional Court, the youngest in Europe, are not an exception to this. This paper thus discusses the relationship between the Constitutional Court of Kosovo and the Supreme Court of Kosovo.
... ENVER HASANI Enver Hasani is a Research Assistant at the International Relations Department a... more ... ENVER HASANI Enver Hasani is a Research Assistant at the International Relations Department at Bilkent University, Ankara. ... demanded that FRY accept a proposal of the Organisation for Security and Cooperation in Europe for a new mission by Filipe Gonzalez, the personal ...
Ankara : Department of International Relations and Institute of Economics and Social Sciences of ... more Ankara : Department of International Relations and Institute of Economics and Social Sciences of Bilkent University, 1998.Thesis (Master's) -- Bilkent University, 1998.Includes bibliographical references leaves 145-163Was former Yugoslavia an artificial creature and what are the reasons behind its creation? Has Kosova/o and its majority population the right to self-determination, meaning independent statehood as the former Yugoslav republics? What was the role of Serbian nationalism in the creation and dissolution of former Yugoslavia? These are some of the core issues we have discussed here which enabled us to fully understand former Yugoslavia’s nightmare. Kosova/o and Albanians living in former Yugoslavia were the most discriminated nation in the State. In the period between the two Wars, they had not even been treated as a minority. Only after 1974 they became, for the first time, players in the balance-of-power game within the Communist Yugoslavia. Yet, they were mostly mis...
These past three years have been a useful learning process for the Stability Pact. Some achieveme... more These past three years have been a useful learning process for the Stability Pact. Some achievements are visible, but there also has been much criticism with regards to its real outcome and performance. However, an independent assessment of the process is needed to analyse what is functioning well, and what could be improved, as judged by participants from the region. So far either no through assessment is done, or assessment have been at project level, (technical, in terms of project completion, disbursement, timing, task performed), not in terms of the political goal that projects were designed to achieve. One of the main lessons appears to be the need to refine the approach and priorities. Some topics have already found an answer, while for some other a clearer vision in needed.
This paper clarifies the role and position of the Head of State from a comparative perspective, a... more This paper clarifies the role and position of the Head of State from a comparative perspective, as well as the protection of that institution from an extra constitutional dismissal via constitutional amendment. Its starting point was the exercise by the Constitutional Court of Kosovo of abstract preventive control of eleven (11) proposed constitutional amendments. The Court declared unconstitutional over sixty (60) per cent of them, including amendment ten (10), the major subject of this paper. In this case, the Court made it clear that the early termination of the mandate of the Head of State undertaken through the enactment of a new constitutional amendment was unconstitutional. Ultimately, the paper demonstrates that no serious and professional court would ever take into account arguments ad hominem in cases dealing with abstract review of constitutionality of laws and constitutional amendments.
Duke pasur parasysh faktin se deri me sot procesi i zbatimit te Kushtetutes se Kosoves eshte perb... more Duke pasur parasysh faktin se deri me sot procesi i zbatimit te Kushtetutes se Kosoves eshte perballur me pengesa, ne vecanti per shkak te mungeses se interpretimit uniform te dispozitave te saj, eshte konsideruar si e nevojshme te sigurohet nje interpretim nga ekspertet ne menyre qe te arrihet deri te kuptimi i drejte dhe i sakte i saj. Komentari jep shpjegime dhe sqarime te neneve te Kushtetutes dhe udhezime per zbatimin e drejte dhe adekuat te saj, bazuar ne teorine dhe praktiken vendore dhe nderkombetare, duke mos lene anash edhe arritjet juridike ne kete drejtim. Prandaj, ky komentar do t’i ndihmoje profesionisteve juridik ne institucionet e Kosoves, duke filluar nga Ministrite, Gjykatat, Prokurorite, Fakultetet Juridike, si dhe bashkepunetoret profesional per te kuptuar dhe zbatuar drejt Kushtetuten gjate kryerjes se detyrave te tyre.
Hartimi i nje teksti universitar me titull: “Hyrje ne sistemin ligjor ne Kosove”, i shkruar nga d... more Hartimi i nje teksti universitar me titull: “Hyrje ne sistemin ligjor ne Kosove”, i shkruar nga disa autor te fushave perkatese ka qene e domosdoshme per studente por edhe komunitetin e juristeve. Kjo per faktin se nje liber i tille ne gjuhen shqipe ka munguar; por edhe per arsyeje te nje perfshirje me te gjere te mendimit juridik nga disa autore. Ky tekst ka per qellim t’i pajis studentet me njohurit themelore per sistemin juridik ne Kosove. Eshte zgjedhur si metode qe te perfshihen shume autore, ku secili te shkruaj nga fusha juridike perkatese dhe te ofroj njohurite themelore, respektivisht bazike per sistemin juridik ne Kosove.
Published in Vienna in 2003 by the National Defense Academy and Bureau for Security Policy, in co... more Published in Vienna in 2003 by the National Defense Academy and Bureau for Security Policy, in co-operation with the PfP-Consortium of Defence Academies and Security Studies Institutes
Using Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role ... more Using Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role of constitutional courts as agents for implementing a democratic project on behalf of the sovereign as the principal. It discusses that role primarily from the point of view of the court’s functional intervention in improving the behaviour of the three branches of government. The paper begins by unveiling the historical development of constitutional justice, with as its focus the concept of new constitutionalism and the European/Kelsenian model encountered in Kosovo. It discusses too the theories of delegation of power, the contractual relationship, and trust between sovereigns and constitutional adjudicators in the context of subjects connected with this article. To present scenarios where the court manifests itself as a negative legislator, a positive legislator, and as an influencer of attitudes, the article includes convincing illustrations from both legal theory and case-law.
Using Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role ... more Using Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role of constitutional courts as agents for implementing a democratic project on behalf of the sovereign as the principal. It discusses that role primarily from the point of view of the court’s functional intervention in improving the behaviour of the three branches of government. The paper begins by unveiling the historical development of constitutional justice, with as its focus the concept of new constitutionalism and the European/Kelsenian model encountered in Kosovo. It discusses too the theories of delegation of power, the contractual relationship, and trust between sovereigns and constitutional adjudicators in the context of subjects connected with this article. To present scenarios where the court manifests itself as a negative legislator, a positive legislator, and as an influencer of attitudes, the article includes convincing illustrations from both legal theory and case-law.
This paper discusses the transfer of judicial sovereignty in Kosovo from a comparative perspectiv... more This paper discusses the transfer of judicial sovereignty in Kosovo from a comparative perspective. In particular, it addresses the transfer of constitutional jurisdiction to the Special Court of Kosovo. This court was formed as a result of Kosovo’s commitment to address allegations made by the Council of Europe in a document known as the Dick Marty report. The report alleges that war crimes and crimes against humanity and international law were committed during and in the aftermath of the Kosovo war (1998–1999). It took several years for the Court to be formed as constitutional amendments, legal infrastructure, and other practical steps were needed to make the Court operational. These preparatory measures have been taken, but practical results are missing, and there is fear that the Court might end up like previous UN- and EU-led justice systems, which did too little and were too late to address the culture of impunity in Kosovo.
Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent h... more Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, ...
The Kosovo Specialist Chambers embody a remarkable project involving elements of the domestic law... more The Kosovo Specialist Chambers embody a remarkable project involving elements of the domestic law of the Republic of Kosovo, the EU’s external relations law, and international criminal law. The Chambers’ hybrid nature is not only unique, but also atypical in regards to its influence in Kosovo’s constitutional order. The Specialist Constitutional Chamber is one of the instances of the Kosovo Specialist Chambers sitting in the Hague. The Specialist Constitutional Chamber resembles Kosovo’s Constitutional Court on a specific, though exclusive, area of law—the law surrounding the court in general. The two courts not only exercise the same generic function—on the basis of exclusive material criteria—but also possibly parallel and compete with each other. The relationship between the “two courts” is at best explained with the term “fragmentation of constitutional jurisdiction.” While the two courts are forced to endure under the same normative roof—the Constitution—they inherently exercis...
Constitutional Courts in the former communist countries have been instruments of change following... more Constitutional Courts in the former communist countries have been instruments of change following the collapse of communism. Their establishment and operation proved to be very useful in promoting the rule of law and constitutionalism. Their establishment, however, also proved to be a source of tension between them and the ordinary courts of higher instance. In some cases, it was the legal and constitutional framework that stood behind this tension, but in most cases it was the very legal culture and the local histories that accounted for that tension. Kosovo and its Constitutional Court, the youngest in Europe, are not an exception to this. This paper thus discusses the relationship between the Constitutional Court of Kosovo and the Supreme Court of Kosovo.
... ENVER HASANI Enver Hasani is a Research Assistant at the International Relations Department a... more ... ENVER HASANI Enver Hasani is a Research Assistant at the International Relations Department at Bilkent University, Ankara. ... demanded that FRY accept a proposal of the Organisation for Security and Cooperation in Europe for a new mission by Filipe Gonzalez, the personal ...
Ankara : Department of International Relations and Institute of Economics and Social Sciences of ... more Ankara : Department of International Relations and Institute of Economics and Social Sciences of Bilkent University, 1998.Thesis (Master's) -- Bilkent University, 1998.Includes bibliographical references leaves 145-163Was former Yugoslavia an artificial creature and what are the reasons behind its creation? Has Kosova/o and its majority population the right to self-determination, meaning independent statehood as the former Yugoslav republics? What was the role of Serbian nationalism in the creation and dissolution of former Yugoslavia? These are some of the core issues we have discussed here which enabled us to fully understand former Yugoslavia’s nightmare. Kosova/o and Albanians living in former Yugoslavia were the most discriminated nation in the State. In the period between the two Wars, they had not even been treated as a minority. Only after 1974 they became, for the first time, players in the balance-of-power game within the Communist Yugoslavia. Yet, they were mostly mis...
These past three years have been a useful learning process for the Stability Pact. Some achieveme... more These past three years have been a useful learning process for the Stability Pact. Some achievements are visible, but there also has been much criticism with regards to its real outcome and performance. However, an independent assessment of the process is needed to analyse what is functioning well, and what could be improved, as judged by participants from the region. So far either no through assessment is done, or assessment have been at project level, (technical, in terms of project completion, disbursement, timing, task performed), not in terms of the political goal that projects were designed to achieve. One of the main lessons appears to be the need to refine the approach and priorities. Some topics have already found an answer, while for some other a clearer vision in needed.
This paper clarifies the role and position of the Head of State from a comparative perspective, a... more This paper clarifies the role and position of the Head of State from a comparative perspective, as well as the protection of that institution from an extra constitutional dismissal via constitutional amendment. Its starting point was the exercise by the Constitutional Court of Kosovo of abstract preventive control of eleven (11) proposed constitutional amendments. The Court declared unconstitutional over sixty (60) per cent of them, including amendment ten (10), the major subject of this paper. In this case, the Court made it clear that the early termination of the mandate of the Head of State undertaken through the enactment of a new constitutional amendment was unconstitutional. Ultimately, the paper demonstrates that no serious and professional court would ever take into account arguments ad hominem in cases dealing with abstract review of constitutionality of laws and constitutional amendments.
Duke pasur parasysh faktin se deri me sot procesi i zbatimit te Kushtetutes se Kosoves eshte perb... more Duke pasur parasysh faktin se deri me sot procesi i zbatimit te Kushtetutes se Kosoves eshte perballur me pengesa, ne vecanti per shkak te mungeses se interpretimit uniform te dispozitave te saj, eshte konsideruar si e nevojshme te sigurohet nje interpretim nga ekspertet ne menyre qe te arrihet deri te kuptimi i drejte dhe i sakte i saj. Komentari jep shpjegime dhe sqarime te neneve te Kushtetutes dhe udhezime per zbatimin e drejte dhe adekuat te saj, bazuar ne teorine dhe praktiken vendore dhe nderkombetare, duke mos lene anash edhe arritjet juridike ne kete drejtim. Prandaj, ky komentar do t’i ndihmoje profesionisteve juridik ne institucionet e Kosoves, duke filluar nga Ministrite, Gjykatat, Prokurorite, Fakultetet Juridike, si dhe bashkepunetoret profesional per te kuptuar dhe zbatuar drejt Kushtetuten gjate kryerjes se detyrave te tyre.
Hartimi i nje teksti universitar me titull: “Hyrje ne sistemin ligjor ne Kosove”, i shkruar nga d... more Hartimi i nje teksti universitar me titull: “Hyrje ne sistemin ligjor ne Kosove”, i shkruar nga disa autor te fushave perkatese ka qene e domosdoshme per studente por edhe komunitetin e juristeve. Kjo per faktin se nje liber i tille ne gjuhen shqipe ka munguar; por edhe per arsyeje te nje perfshirje me te gjere te mendimit juridik nga disa autore. Ky tekst ka per qellim t’i pajis studentet me njohurit themelore per sistemin juridik ne Kosove. Eshte zgjedhur si metode qe te perfshihen shume autore, ku secili te shkruaj nga fusha juridike perkatese dhe te ofroj njohurite themelore, respektivisht bazike per sistemin juridik ne Kosove.
Published in Vienna in 2003 by the National Defense Academy and Bureau for Security Policy, in co... more Published in Vienna in 2003 by the National Defense Academy and Bureau for Security Policy, in co-operation with the PfP-Consortium of Defence Academies and Security Studies Institutes
Using Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role ... more Using Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role of constitutional courts as agents for implementing a democratic project on behalf of the sovereign as the principal. It discusses that role primarily from the point of view of the court’s functional intervention in improving the behaviour of the three branches of government. The paper begins by unveiling the historical development of constitutional justice, with as its focus the concept of new constitutionalism and the European/Kelsenian model encountered in Kosovo. It discusses too the theories of delegation of power, the contractual relationship, and trust between sovereigns and constitutional adjudicators in the context of subjects connected with this article. To present scenarios where the court manifests itself as a negative legislator, a positive legislator, and as an influencer of attitudes, the article includes convincing illustrations from both legal theory and case-law.
Using Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role ... more Using Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role of constitutional courts as agents for implementing a democratic project on behalf of the sovereign as the principal. It discusses that role primarily from the point of view of the court’s functional intervention in improving the behaviour of the three branches of government. The paper begins by unveiling the historical development of constitutional justice, with as its focus the concept of new constitutionalism and the European/Kelsenian model encountered in Kosovo. It discusses too the theories of delegation of power, the contractual relationship, and trust between sovereigns and constitutional adjudicators in the context of subjects connected with this article. To present scenarios where the court manifests itself as a negative legislator, a positive legislator, and as an influencer of attitudes, the article includes convincing illustrations from both legal theory and case-law.
This paper discusses the transfer of judicial sovereignty in Kosovo from a comparative perspectiv... more This paper discusses the transfer of judicial sovereignty in Kosovo from a comparative perspective. In particular, it addresses the transfer of constitutional jurisdiction to the Special Court of Kosovo. This court was formed as a result of Kosovo’s commitment to address allegations made by the Council of Europe in a document known as the Dick Marty report. The report alleges that war crimes and crimes against humanity and international law were committed during and in the aftermath of the Kosovo war (1998–1999). It took several years for the Court to be formed as constitutional amendments, legal infrastructure, and other practical steps were needed to make the Court operational. These preparatory measures have been taken, but practical results are missing, and there is fear that the Court might end up like previous UN- and EU-led justice systems, which did too little and were too late to address the culture of impunity in Kosovo.
Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent h... more Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, ...
Uploads
Papers by Enver Hasani