Acta Universitatis Danubius. Juridica, Vol 14, No 3 (2018)

Interpretation of the Constitutional Court of Kosova in relation to Immunity

Murtez Zekolli

Abstract


The basic idea of any state based on the rule of law is equality before the law.This equality, first of all, means the accountability of all powers to the law. The essence of democracy is the rule of law. No one within a democratic state can refuse to obey the laws and laws are equal for all. Democracy exists only when the law applies equally for the ruling people, the authorities and the citizens. For this reason, any exception to the principle of completeness in law enforcement violates the basic values of our society. Therefore these exceptions are acceptable only when dealing with a strong issue, always interpreted in a limited way.Immunity is the privilege of high authorities not to give account according to the law. It is the main exclusion toward the principle of equality before the law in a constitutional state and is only justified to guarantee the independence of these authorities as a guarantee of democracy itself.

This exception is introduced in our legal systems as a protection for the independence of some institutions by avoiding the use of unfair judicial proceedings and temporary measures to limit their freedom of choice. In this way, immunity is needed as a guarantee against the misuse of independent judiciary powers aimed at reducing the constitutional freedom of other state institutions or of a judge.Obviously, the need for these guarantees is directly related to the level of independence and neutrality of the judicial power in each state. The higher the professionalism is, the smaller the extension of the need for immunity by independent authorities.Thus, in some developed European countries, social demand has recently increased to reduce immunity, as long as it is no longer necessary and the institution itself can be used against its initial meaning. As some international reports point out, in many countries, senior state officials are protected from immunity so much so that criminals often seek state positions simply to avoid prosecution. In these cases, there is a high risk for the vicious circle of corruption; parliament, because of its privileged protection, attracts immoral individuals who then continue and add corrupt behavior. Some individuals in need of legal protection have managed with bribes to get included in the party's electoral lists in order to secure immunity. On the other hand, if the immunity of judges is seen as a kind of exemption from punishment, it can become a shield to protect corrupt practices. Finally, in modern countries there is a need to find a proper balance between the need to protect the independence of constitutional stakeholders and the need for legal control of all powers exercised within the state. Lack of legal developments and gaps in the state of law can be taken into account to increase control over the misuse of official powers, but also to increase protection against inadequate attacks on their independence.


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