Whether and how Law 11/L-001 amending the Law on the Specialist Chambers can be stopped, annulled, or both
Kosovo Dispatch Legal Desk | 8 October 2026
The Assembly adopted the amendments to Law 05/L-053 at 23:46 on 6 October, with 88 votes and none against, in the extraordinary session that then elected Justina Shiroka-Pula President. The EU called the law a breach of Kosovo's obligations toward the Union. Germany called it an attack on the independence of a court founded on Kosovo's own Constitution. The Chambers said they had not been consulted and would not comment. The law is not yet with the President. Under Article 43(1) of the Law on the Constitutional Court the Assembly sends an adopted law for promulgation only after the eight-day window of Article 113(5) has closed, which for this law is 14 October; the President then has eight days under Article 80 to decree it or return it once with reasons; a return is overridden by a majority of all deputies, sixty-one, against the eighty-eight who voted for it, and if she does neither within the eight days the law is promulgated without her signature and published. The law says it enters into force on the day of publication. As of 7 October no referral against it had been reported. The question that follows is whether the law can be stopped or annulled, by whom, and with what effect.
The court cannot start
The Specialist Chamber of the Constitutional Court has no power of its own motion. Its judgment of 26 November 2020 quotes Article 113(1) of the Constitution: the Court "decides only on matters referred to [it] in a legal manner by authorised parties." Until someone the Constitution names files a referral, the law stands untouched in The Hague however many statements are issued in Brussels and Berlin.
The law knows this. Its Article 23 says the Chamber "shall have no jurisdiction to conduct an abstract (preliminary), concrete or incidental review of the constitutionality of the laws or the Law No. 05/L-053," sends that review to "the Constitutional Court of the Republic of Kosovo, sitting in its regular composition in Pristina," and ends with the sentence the floor amendment added: "Members of the Assembly of the Republic of Kosovo cannot refer this Law to the Specialist Chamber of the Constitutional Court in The Hague." Përparim Gruda explained the amendment on 7 October: the Hague chamber may review the Chambers' own decisions "but not the decisions of the Assembly of Kosovo," because "Kosovo does not have two Constitutional Courts."
What Article 23 says against itself
Read to the end, Article 23 qualifies what its second sentence announces. Its third paragraph says the Chamber "shall exercise its jurisdiction over constitutional referrals submitted by persons authorized under Article 113 of the Constitution, insofar as they relate to the Specialist Chambers or the Specialist Prosecutor's Office, in accordance with Article 162, paragraph 3 of the Constitution and this Law," which is the Constitution's own formula and the one under which the Chamber has exercised constitutional review since 2017. Its fifth paragraph lets the Pre-Trial Judge, the Trial Panel, the Court of Appeals Panel or the Supreme Court Panel refer "the question of the compatibility of a legal provision with the Constitution," on three conditions, and adds that the referral "may not be used for an abstract review of this Law, for a general reconsideration of the legislative determination of the jurisdiction of the Specialist Chambers." Its seventh paragraph says "the Ombudsperson of the Republic of Kosovo may refer a matter to the Specialist Chamber of the Constitutional Court pursuant to Article 113(2)," and Article 113(2) is the abstract review of laws. Two readings are open. On one, the later paragraphs are exceptions carved from the exclusion: the panels get a narrow incidental referral, the Ombudsperson a single route, and everything else stays in Pristina. On the other, the third paragraph restates Article 162(3) in full, the exclusion cannot cut down what the Constitution confers, and the exceptions show the drafters knew it. The text supports both and chooses neither. What it excludes without qualification is a referral by deputies and what it calls "general reconsideration" of the jurisdiction; a court asked to apply Article 23 would first have to decide what else it means, and the Assembly's own text supplies arguments for either answer.
The brake before the decree
The first thing that can happen to the law is suspension, before any question of annulment arises. Article 43(2) of the Law on the Constitutional Court provides that when a law adopted by the Assembly is contested under Article 113(5) ("kontestohet sipas nenit 113, paragrafi 5 i Kushtetutës"), it "shall be sent to the President of the Republic of Kosovo for promulgation in accordance with modalities determined in the final decision of the Constitutional Court on this contest," and Article 43(3) gives the Court sixty days to decide. The Court has read that as an automatic stop. In KO173/22 ten deputies filed on 16 November 2022 against the Law on Temporary Measures for Basic Products; the Court stated, as its practice, in notifying the President and the Assembly, that a law so contested "cannot be decreed, enter into force or produce legal effects until the final decision" ("nuk mund të dekretohet, të hyjë në fuqi ose të prodhojë efekte ligjore deri në vendimin final"), delivered its judgment on 24 November 2023, a year later, and struck the law in its entirety. The Court exceeded the sixty days of Article 43(3) by ten months and the suspension did not lapse with the deadline; the deadline binds the Court, and the precedent shows what happens to the law when it is missed. It does not follow that a new referral would wait as long. A law held under Article 43 never enters into force, so nothing that depends on entry into force happens: no 15-year cap reaches the Appeals Panel, no act is done to a convicted man, no Rule 26 clock starts.
For a Pristina filing that brake has precedent. For a Hague filing it has none, and the question is unresolved rather than answered against it. Article 43(2) speaks of a law contested under Article 113(5) and names no forum; the Specialist Chamber is a chamber of the same Constitutional Court; and the fact that the Chamber's own Rules provide interim measures only on individual referrals, under Rule 21, does not decide it, because a statutory stop on promulgation and a court's interim order are different mechanisms. No referral by deputies has ever been made to the Chamber, so no one has had to answer. The Assembly's officers would have to decide whether to transmit the law to the President in the face of a Hague filing. That is an administrative act by the majority that passed the law; it can produce the fact of promulgation, and it cannot settle whether a Hague referral is a law contested under Article 113(5), which is a question for a court.
The brake has a second effect, on Article 23 itself. Article 23 belongs to a law that enters into force on publication. A referral filed before publication is decided under the Constitution, Law 05/L-053 as it stands, and the Chamber's Rules; Article 23 is then one of the provisions under review and has no force to restrict it. The provision written to keep the deputies out of The Hague cannot operate until the law it belongs to has survived the review it was written to prevent. Once the law is published, Article 23 is in force, and the Chamber would have to read it before deciding anything else; what it would find there is set out above.
Routes to review
The Constitution names the referrers, and Article 23 can close at most one of the routes in words, and only once it is in force.
Ten deputies, within eight days of adoption, under Article 113(5). Article 162(3) says the Chamber "shall exclusively decide" Article 113 referrals relating to the Chambers, and Rule 4(b) of the Chamber's Rules takes jurisdiction over referrals by "persons authorised to make referrals to the Kosovo Constitutional Court under Article 113" which "relate to or directly impact upon the work, decisions, orders or judgments of the Specialist Chambers." A statute telling deputies which constitutional court they may use is the provision Article 23 adds; whether the Assembly can do that is a question the Chamber would decide, in a referral filed before publication as a question about Article 23's validity, in one filed after as a question about its own competence. The underlying jurisdictional question does not depend on Article 23 and does not wait for it. Article 162(3) gives the Chamber a strong claim. It does not settle it, because the same sentence ends "in accordance with a specific law," and the argument that Article 49 of that law as it stands already reserves review of legislation to Pristina was made years before Article 23 was drafted to say the same thing in terms. The Chamber has never had to rule on that sentence against a statute written to test it.
The Assembly, the President, the Government or the Ombudsperson of Kosovo, under Article 113(2), after entry into force. In Pristina, Article 29 of the Law on the Constitutional Court lets one quarter of the deputies, thirty, file that referral, and Article 30 gives six months from the day the contested act enters into force. In The Hague, Article 23 leaves the Ombudsperson's road open in terms, the Chambers' own Ombudsperson has the same road under Article 49(5) of the Law, which the amending law does not repeal and does not mention, and Rule 26 of the Chamber's Rules gives both Ombudspersons two months "from the impugned law having entered into force." The Gazette starts both clocks, and neither starts while the law is held under Article 43.
A panel of the Chambers, under Article 113(8) and Article 49(4), when a provision it must apply is of doubtful constitutionality and its decision depends on the answer. There is no clock. Article 26(3) of the law applies the 15-year cap, Kosovo imprisonment and pardon eligibility "immediately upon the entry into force" to everyone in proceedings or convicted, final or not, so once the law is in force the Appeals Panel assigned to Thaçi, Veseli, Selimi and Krasniqi, which on 29 September gave the parties until 27 November to file their notices of appeal, will have to decide whether to apply the amended Article 44(1) and, if it doubts the amendment, whether to refer it. Article 23 permits that referral where the provision is "directly applicable in the particular case" and the doubt is "serious and well-founded," and forbids using it "for a general reconsideration of the legislative determination of the jurisdiction." Rule 25 asks only that the panel be "uncertain." Which threshold governs is itself the Chamber's question.
The accused and victims, under Article 113(7) and Article 49(3), after exhausting remedies, within two months of the final ruling on the violation under Rule 20. This route is narrower than the others. On 24 April 2024, dismissing a referral by Sabit Januzi, Ismet Bahtijari and Haxhi Shala against the Legal Aid Regulations, the Chamber held that "the Kosovo Constitution and the Law do not authorise individuals to raise questions of constitutional compatibility of laws"; an individual complains of a specific act that violated his rights, after the remedies against that act are exhausted. Pjetër Shala and Salih Mustafa, whose judgments are final and whom Article 26(3) reaches on publication day, would therefore be complaining of the first act done to them under the new law, a transfer order or a refusal of one, and the Chamber would reach the law only as far as that act requires.
And a sixth route, which leads only to the Rules: Article 24 orders the Chambers to amend their Rules of Procedure and Evidence to implement it, and under Rule 7(7) an amendment "shall come into force seven (7) days after the Specialist Chamber of the Constitutional Court determines" it complies with Chapter II. No Rule implementing the 30-day review or the transfer timetable can operate until the Chamber has cleared it. That review holds the implementing Rules and nothing else; it does not suspend the statute and gives the Chamber no power to invalidate it.
What the Chamber can do once seised
The 2020 judgment held that the proposed amendments "diminish the rights and freedoms guaranteed by Chapter II." It did not annul anything, because Article 144(3) stops an amendment with that finding before adoption. For a law in force the Chamber wrote its own remedy in July 2017. Rule 29 of its Rules, headed "Judgment on Legislative Provisions," lets the Panel "find that a legislative provision(s) falling within its jurisdiction and affecting the mandate, jurisdiction, structure or operations of the Specialist Chambers is incompatible with the Constitution and may further declare that, by reason of such incompatibility, the entire legislative instrument lacks constitutional validity." A provision so declared "shall cease to have legal effect from the date of the pronouncement of the judgment," and unless the judgment says otherwise "lacked constitutional validity from the date of its entry into force." Article 116(1) makes the Court's decisions binding on all persons and institutions. The Rule reaches only provisions "falling within its jurisdiction," so it adds nothing until jurisdiction is upheld, against the reading of Article 49 that reserves this review to Pristina, and against whatever Article 23 is found to mean once in force; it describes what the Chamber can do once it has jurisdiction, and the jurisdiction has to come from elsewhere. No published judgment of the Chamber has applied it.
The yardstick is the one the Chamber set in 2020. It held that the consultation clause in the 2014 Exchange of Letters "is also a constitutional requirement relevant in the legislative process of Kosovo" through Article 162(13) and (14), that its omission "amounts to a procedural deficiency," and that the requirement "safeguards their independent, effective and secure operation." The clause itself binds Kosovo to "consultations in the process of amending laws having an impact on the discharge of EULEX KOSOVO mandate as well as for the judicial proceedings arising from SITF investigation," and the counterpart it names is the EULEX Head of Mission and/or the EU Special Representative; the Chambers are not named. The Chambers' statement of 7 October that they were not consulted therefore does not answer the question the clause asks. The record so far is three items. The explanatory memorandum of the law has a section headed "Consultation (who was consulted and brief summaries of the responses)," and it is blank. The Government said before the vote that it had found no legal obstacle to the bill. The EU's statement of 7 October says the law conflicts with Kosovo's obligations toward the Union and does not say whether the Union was consulted. Whether consultations took place is a fact the Chamber would have to establish before it could find the deficiency. The 2020 judgment concerned a proposed constitutional amendment, rested its holding on Chapter II, and left open whether the deficiency alone would void a law; what it decided is that the requirement belongs to the legislative process, and the clause it enforced is written for the amendment of laws, which is what the Assembly did on 6 October. The Chamber would have to decide what follows from that for an ordinary statute.
The agreement above the law
The EU is the counterpart to the agreement that Law 05/L-053 implements. The law adopted on 6 October amends the statute, not the agreement; what it changes are the domestic arrangements through which Kosovo performs commitments that remain in force. The EU's statement of 7 October that the amendments conflict with Kosovo's obligations toward the Union is the counterpart's declared reading that Kosovo is in breach. It is not a judicial finding, it does not identify the provisions breached, and no dispute procedure under the agreement has been invoked; the piece treats it as evidence, and as the strongest evidence a court on either route would be handed. The constitutional argument rests on the agreement itself, through three provisions.
Article 19(2): ratified international agreements "have superiority over the laws of the Republic of Kosovo." The Exchange of Letters of 14 April 2014 was ratified in its entirety by Law 04/L-274 and sits above Law 05/L-053 and above the law that amends it. Article 18(4): "Amendment of or withdrawal from international agreements follows the same decision making process" as ratification. A statute that touches a treaty is not for that reason an amendment of it; what Article 18(4) rules out is rewriting Kosovo's commitments by domestic legislation, however large the majority, so where the statute and the letters now diverge, Article 19(2) says which prevails. Article 20: state powers may be delegated "on the basis of ratified international agreements," and the 2020 judgment read the letters as such a delegation, with the Chambers' autonomous legal framework resting on it and the mandate running until the EU Council's notification; that is how a clause in the letters became "a constitutional requirement relevant in the legislative process of Kosovo."
The method is established in Pristina. In KO216/22 and KO220/22, judgment dated 12 September 2023, the Constitutional Court was asked whether a provision of the Law on Public Officials breached Article 120 of the Stabilisation and Association Agreement; the Government and the LVV group argued that the Court "does not carry out the constitutional control of the law with international agreements," and the Court examined the provision against the agreement and held it "not contrary to paragraph 2 of Article 19." It found no breach on the facts; it accepted that the comparison is its job. What has not happened, in either formation, is a statute struck on that ground; and the Hague Chamber's 2020 reasoning, through the delegation under Article 20, is related to the Pristina method but is not the same. That is the measure of what is new here, and it is narrower than the forum question.
The commitments in the letters are specific, and the law's provisions do not all stand in the same relation to them. One conflict is direct. The letters promise a statute with provisions on "the service abroad of sentences of imprisonment"; Article 16 of the law sends sentences to Kosovo prisons. A second is serious and unresolved. The letters promise "limitations on the issuance of pardons"; Article 17 makes the convicted eligible "notwithstanding" Law 03/L-101 while keeping that law's criteria and procedure, and whether what remains is a limitation in the sense of the letters is a question of interpretation. A third is the most consequential and the least clean. The letters put sensitive records "exclusively outside the country" and the court's operation in the hands of "EULEX international staff only"; Articles 6 to 11 and 19 to 21 send cases, files and evidence to Kosovo courts and authorities, and the transfer provisions carry their own safeguards, a reservation for applicable international agreements and restrictions on the transfer of original documents and evidence, so a court would have to decide whether those safeguards meet the superior obligation or merely acknowledge it. Article 10D provides for a jurisdiction review of every case within 30 days, but Article 26, the transitional rule, keeps pending proceedings under the previous law until the Appeals Panel has delivered judgment and excepts only Articles 15 to 17, which apply at once. On that reading the immediate effect of the law is concentrated in the sentencing, imprisonment and pardon provisions, and the transfer mechanism waits on the appeal. The 15-year cap is not among the treaty conflicts: nothing in the letters fixes a maximum sentence, and the cap would be fought on judicial independence, victims' rights and the integrity of the delegated mandate, where Article 19 gives it nothing.
Consultation, consent and continuing obligation are three different questions. Whether Kosovo was required to consult is the clause above. Whether the agreement requires the EU's consent to amendments we have not found in the letters; consultation and consent are different obligations, and the piece claims only the first. Whether a valid domestic law discharges an international obligation on its own it does not: the obligation survives the statute, and the counterpart's rejection forecloses any argument that the parties have changed the agreement by conduct.
The route on record in The Hague is the 2020 one, through Articles 162(13) and (14) and the delegation under Article 20; the route on record in Pristina is Article 19(2) itself, and a court would have to choose between them or use both. The Chambers are Kosovo institutions under Kosovo's Constitution, internationally staffed under the agreement; the EU's rejection of the law does not of itself entitle the Registrar or the judges to disregard its provisions, and the piece does not say it does. What the EU can do, on the 2020 precedent, is put its reading before the court: the High Representative and the Head of EULEX both filed submissions in that referral.
The forum war
If ten deputies file in Pristina as Article 23 invites, the law stops under Article 43 and the Chamber's Rules describe a procedure for bringing the referral to The Hague, and the amending law has cut into one of the two statutory provisions that procedure rests on. Rule 17: on notification "of a referral made to the Kosovo Constitutional Court," the President assigns a Panel "which shall determine whether to order the transfer of the referral pursuant to Articles 10(2) and 54(2) of the Law," and a referral so ordered "shall be transferred to the Specialist Chamber of the Constitutional Court forthwith." Rule 19(2): if the Panel finds it has no jurisdiction, it sends the referral back. The transfer power rests on the Law's primacy clause in Article 10(2), which the amending law leaves intact, and on Article 54(2), which the amending law rewrites to require that a transfer request identify "the criminal offense, the specific facts, and the jurisdictional basis pursuant to Article 6." Before publication the rewritten Article 54 is not in force either, and the transfer would be decided under the current text. That is the collision: Pristina will say the review of its own legislation was never a Hague matter; The Hague will say Article 162(3) made it one. The basis for the transfer would be contested before the referral itself was, and all the while the law would sit unpromulgated. If the Constitutional Court in Pristina keeps the referral under the Constitution and the law in force, it can go to the substance, the cap, the transfers, the dates, and judge them on their own terms without ruling on Article 23 at all.
The argument behind Article 23 has an author. In the German Law Journal in 2023, Enver Hasani and Fisnik Korenica wrote that the words "in accordance with a specific law" at the end of Article 162(3) suggest that the law, rather than the Constitution, is the ultimate basis of the Chamber's decisions, that Article 49 already "narrows" its jurisdiction, that "there is no norm governing the hierarchy between the two" formations, and that they "may parallel and compete." They read the 2020 judgment as the Chamber claiming competence over its own competence. On 25 September 2026 Hasani was among 24 signatories asking Ombudsperson Naim Qelaj to refer the Law on the Specialist Chambers to the Constitutional Court in Pristina, arguing that Article 6's "relate to" test had lost its legal effect. In December 2017 the same Hasani told BIRN the Law could not be abolished without revoking the constitutional amendment. Behind the forum question lies a nine-year constitutional dispute that the Assembly has now decided by ordinary legislation, in favour of one of the two parties to it.
Answer
The law faces two forms of constitutional control, and they are alternatives. Before promulgation, ten deputies filing in Pristina by 14 October hold it unpromulgated under Article 43 until the Court's final decision, which in the last comparable case took a year, and that stop reaches every provision at once, the 15-year cap, the transfers and Article 23 itself, which cannot restrict a review conducted while it is not yet law; whether a Hague filing stops it the same way has never been tested. If it enters into force, it can be annulled, in part or as a whole, ceasing to have effect on the day the judgment is pronounced and, unless the judgment says otherwise, deemed to have lacked validity since the day it entered into force, binding on every institution under Article 116, by whichever formation of the Constitutional Court holds itself competent, if it finds one or more of its provisions incompatible with the Constitution; the Specialist Chamber has Rule 29 for that purpose, if it first upholds its own jurisdiction, against Article 49 as it stands in a referral filed before publication, and against Article 23 as well in any referral filed after. It cannot be annulled by the Chamber's own initiative, by the EU, or by the Netherlands. The avenues identified are ten deputies within eight days, thirty deputies or an Ombudsperson within six months or two months of publication depending on the forum, a panel of the Chambers once it must apply the cap, or a convicted man against the first act done to him. Three of those routes run inside the court the law is aimed at, and the one the law prescribes is the one where the brake is proven. Once the law is in force, Article 23 would be the Chamber's preliminary question, because its jurisdiction would turn on what the article means; before publication the Chamber's jurisdiction stands or falls on the Constitution and Article 49 as they are, and Article 23 is examined as one contested provision among the rest, in whatever order the Chamber chooses; in Pristina it need not be judged at all. The consultation clause would follow, once it is established who was consulted and who was not. The agreement is the third ground and may be the strongest, because the supremacy of a ratified agreement under Article 19(2) is express constitutional text, the Constitutional Court in Pristina has already examined an ordinary law against a ratified EU agreement on that basis in KO216/22 and KO220/22, and the allocation of review between the two formations is the matter in dispute; Article 16 stands in direct conflict with the letters, Article 17 in a serious one that turns on what limitation the pardon law still imposes, the transfer provisions in a conflict a court would have to measure, and the counterpart's statement of breach is the evidence, with incompatibility and remedy left to whichever formation decides. The Assembly has decided by ordinary legislation which formation of the Constitutional Court may judge the Assembly's own law, in an article whose later paragraphs can be read as restoring much of what its second sentence excludes, and it has legislated against commitments that ordinary legislation cannot amend. Article 116(1) settles that a judgment of the Constitutional Court binds every institution. What it does not settle is which formation's judgment that is, and whether the Correctional Service, the Special Prosecution and the Office of the President would comply in practice with a judgment the Assembly has declared in advance cannot be given. Those are the questions the law has now put to the state.
