The draft statute of the Association of municipalities with a Serbian majority does not align with Kosovo’s Constitution, but “it cannot be annulled,” says Enver Hasani, former President of the Constitutional Court of Kosovo, currently a professor of Law and International Relations at the University of Pristina, speaking to Radio Free Europe. This view is also shared by Belgrade political scientist Ognjen Gogić, who notes that issues may arise regarding the establishment of the Association if “a non-constitutional draft statute is submitted to the Constitutional Court of Kosovo for review.”
Kosovo President Vjosa Osmani stated on March 21 that the draft statute for the Association of municipalities with a Serbian majority, drafted by the European Union, does not align with Kosovo’s Constitution. She began making frequent statements on this issue after meeting with the EU Special Representative for the Kosovo-Serbia dialogue, Peter Sorensen, on March 17. Osmani expressed her objections to Sorensen about the draft statute, which was offered to Kosovo and Serbia in October 2023 by the then EU, US, France, Germany, and Italy envoys.
At that time, the EU described the draft as a “modern model” for protecting minority communities, and it was initially accepted in principle by both Kosovo Prime Minister Albin Kurti and Serbian President Aleksandar Vučić. However, Kurti later changed his position on the draft statute, refusing to submit it to the Kosovo Constitutional Court for review—an action that would mark the first step towards the creation of the Association.
Radio Free Europe asked the European Union whether its stance on the formation of the Association had changed and whether any alternative solutions for the Serbian community in Kosovo were being considered, but received no response by the time of publication. Neither did the Kosovo government answer Radio Free Europe’s questions about whether it agrees with President Osmani’s assessment that the draft statute for the formation of the Association is unconstitutional, nor whether it plans to propose a new draft statute or seek an alternative solution. Radio Free Europe also did not receive a response from the Office for Kosovo in the Serbian Government.
Osmani: My Objections to the Statute Are Substantial
Osmani stated that her objections to the draft statute of the Association of municipalities with a Serbian majority are of a substantial nature, and she conveyed her position to the EU Special Representative Sorensen. “These are not technical objections. A head of state does not make technical objections. They make substantial objections regarding non-compliance with Kosovo’s Constitution and the risks this draft statute could pose to Kosovo’s internal functionality,” Osmani said to reporters on March 21.
She added that her objections are her personal opinion and that only the Kosovo Constitutional Court can assess the draft statute offered by the EU or any other draft that might be presented by Kosovo’s institutions—“whenever that moment comes.”
Hasani: The Draft Statute Is an Implementation of the Brussels and Ohrid Agreements
Professor Hasani agrees that the draft statute of the Association of municipalities with a Serbian majority, prepared by the EU, contradicts Kosovo’s Constitution. However, he asserts that the draft statute “is a derivative of the Base Agreement for the path toward normalizing relations” between Kosovo and Serbia.
In February 2023, Kurti and Vučić reached an agreement on this base agreement in Brussels, and in March of the same year, they agreed on the Annex for its implementation in Ohrid. Hasani explains that the draft statute of the Association reflects the implementation of both these agreements, which, he argues, serve to establish a political and territorial autonomy for Serbs in Kosovo.
“All of this is in blatant contradiction with Kosovo’s Constitution. However, the draft statute [of the Association] cannot be annulled without annulling the other two agreements [the Brussels and Ohrid agreements]. This cannot happen,” says Hasani. He emphasizes that the Base Agreement and its implementation Annex cannot be annulled because they have become part of European legal order, which conditions the advancement of Kosovo and Serbia toward EU membership.
Gogić: Osmani Should Not Have Made Her Objections Public
Belgrade political scientist Gogić also agrees that the EU’s draft statute for the Association is not in line with Kosovo’s Constitution. However, he notes that President Osmani’s statements could be interpreted in two ways: as a rejection of the draft statute or as an early warning of potential problems. “Perhaps it’s controversial why she went public. She may have been better off addressing this with them [the EU], given that the draft statute was never officially published. But if the version we have seen in the media is accurate, I share her assessment that it does not comply with the Constitution and that it is surprising to see it come from the EU,” says Gogić.
Radio Free Europe has obtained access to the draft statute prepared by the EU, which specifies that the Association will not have executive powers and will not threaten the independence and integrity of Kosovo. The document also states that the statute will be subject to review by Kosovo’s Constitutional Court.
This draft statute also envisions financial support for the Association from Serbia and “an efficient direct communication channel between the Serbian community in Kosovo and the Government of Kosovo, through the Ministry of Local Government Administration.”
Can the EU Change Its Position on the Association?
Both Hasani and Gogić agree that the European Union is unlikely to change its approach regarding the formation of the Association or the agreements reached in Brussels and Ohrid. Hasani does not believe that the Kosovo Constitutional Court could “overturn or annul” the EU’s draft statute for the Association.
“As a result, the draft statute can only change in certain parts. In my opinion, it may only undergo cosmetic changes,” says Hasani. He also expresses confidence that the EU has not changed its approach to the draft statute of the Association, nor to the agreements made in Brussels and Ohrid.
Gogić, on the other hand, considers that the EU might realize that the draft statute is “not the most suitable” and could offer a new document. “You can’t push a statute that can’t pass [the Constitutional Court’s review] and give more ammunition to those who oppose the Association in Kosovo,” says Gogić.
At the end of last year, Kosovo Prime Minister Albin Kurti stated that, as the head of government, he could not form the Association of municipalities with a Serbian majority because the Base Agreement had not been signed. Kurti believes that signing the Agreement would guarantee that Serbia would fulfill its obligations toward Kosovo.
Currently, Kosovo is in the process of forming a new government after the parliamentary elections on February 9, in which Kurti’s Self-Determination Movement won the most votes.
