Members of the incumbent Government, who are also members of the Assembly, are criticized by civil society representatives for abuse of official authority and open violation of the Law on Government.

A conflict between law and political practice is disturbing Kosovo's political and institutional scene.

Members of the incumbent Government, who are also members of the Assembly, are criticized by civil society representatives for abuse of official authority and open violation of the Law on Government.

Gëzim Shala from the Kosovo Law Institute says that officials who hold dual positions exceed their competences.

"The government, according to the Constitution and the Law [on Government] - now confirmed by the Supreme Court - knows very well that it cannot hold those positions [of ministers and deputy ministers]. Holding them is against the Constitution and illegal," Shala tells Radio Free Europe.

Arbërie Nagavci is one of the officials with two positions - acting Minister of Education and Member of Parliament.

She tells Radio Free Europe that she only receives her salary as a minister and not as an MP.

Government officials in office have justified this commitment, including Prime Minister Albin Kurti, who has said that "the state cannot have a vacuum in governance - the Government cannot have a stoppage of operations."

His government has been in office since March 23, when it completed its 4-year mandate.

The Assembly resulting from the parliamentary elections of February 9 has not yet been constituted to pave the way for the formation of the new Government.

What does the law say?

The Law on Government, in Article 26, requires that every member of the Government who is elected as a deputy must resign from his or her position in the executive branch before the certification of the election results.

But, even after the certification of the results of the February 9 elections - on March 27 by the Central Election Commission - 17 members of the incumbent Government, also certified as deputies, continued to exercise their executive functions.

Former Minister of Justice, Albulena Haxhiu, and former Deputy Prime Minister Emilia Rexhepi held both positions until August 26, when they were voted Deputy Speakers of the Assembly.

Currently, 15 officials still hold executive and legislative functions simultaneously.

Are the decisions made at risk?

On July 15, the Supreme Court overturned an administrative instruction of the acting Minister of Finance, Hekuran Murati, confirming that exercising two functions - deputy and minister - is prohibited under Article 72 of the Constitution.

The administrative instruction concerned the use of fiscal devices.

The incumbent government called the Supreme Court's decision "arbitrary," but implemented it nonetheless.

During her tenure, she also made other decisions and made several director appointments, including to the Kosovo Institute for Public Administration, the Kosovo Forensics Agency, and the Education Inspectorate.

Also, the executive and the acting ministers approved several regulations, such as the one for the training, testing and certification of inspectors, the regulation on the procedure for admission to the civil service, as well as the amendment of the statute of the regional water supply company "Mitrovica Sh.A.".

The Ministry of Culture, Youth and Sports also revoked the license of the Association for Collective Administration of Copyright (APIK) and granted it to the Kosovo Music Rights Association.

But, can the appointments and decisions of the incumbent executive be contested if the Prosecution initiates criminal liability investigations against the Government and incumbent ministers?

According to Gëzim Shala, not necessarily. He emphasizes that legal certainty must be maintained, especially for citizens who may be involved in these procedures.

"For this reason, it cannot be said that all decisions are automatically made, except in cases where any of them is potentially corrupt," explains Shala.

However, he adds, parties who believe they have been harmed by bylaws adopted by the incumbent Government may appeal to the Supreme Court.

Even decisions that affect individual cases, citizens have the right to address in regular courts, says Shala.

Is there a legal basis for investigating criminal liability?

Civil society representatives and some former opposition members say that there is a legal basis for investigating the criminal liability of officials by justice institutions.

Radio Free Europe requested confirmation from the Kosovo Special Prosecution Office, but, as of the publication of this article, did not receive a response.

Since May, the Democratic League of Kosovo - which was in opposition in the previous legislature - has filed 17 criminal charges with the Special Prosecution Office against the acting Prime Minister, Albin Kurti, ministers and a deputy minister in office, who have also been elected MPs.

They were accused of violating the Law on Government and possible abuse of official position or authority.

These reports were submitted by LDK MPs, Doarsa Kica-Xhelili and Hykmete Bajrami.

Kica-Xhelili says that on June 5, the Special Prosecution Office requested, through a letter, additional information regarding the alleged violations, and since then they have had no further contact.

"We have explained the legal basis why they do not have the right to make decisions and cannot use state assets. All we have received is that letter," Kica-Xhelili tells Radio Free Europe.

According to her, the possibility of criminal investigation exists on two levels: members of the incumbent Government who are also MPs cannot make decisions, and they cannot use state assets from an executive position.

Acting Minister Nagavci confirms that investigators have requested data on decisions made by the ministry she leads during her time in office.

"We sent them the materials they requested in writing. There was no interview or any invitation - at least not for me," says Nagavci.

According to the Code of Criminal Procedure, the prosecutor has the right, within 30 days of the submission of the criminal report, to request additional information to verify whether the allegations contained therein are well-founded.

In this case, after the prosecutor has requested additional information, he has six months from the date of filing the initial report to issue a ruling to dismiss the criminal report or to initiate investigations.

Mexhide Demolli from the FOL Movement - a non-governmental organization committed to promoting transparency and accountability in public institutions - says that an announcement from the Prosecutor's Office to indicate whether or not it has already launched investigations would be of interest to the public.

"Unfortunately, there are many delays in many processes, and this is no exception. It will be some time before we have a decision or an official announcement from the Special Prosecution Office about what is happening with this case," Demolli tells Radio Free Europe.

According to Shala, the Prosecution is within the legal deadlines, but it does not mean that it "has to wait for the last day of the deadline to provide notification regarding the case."

Implications on the political scene

On October 12, Kosovo will hold elections for mayors and municipal assembly members. Currently, political parties are in the election campaign.

Shala emphasizes that any decision by the Prosecutor's Office, whatever it may be, may affect political developments, but this should not be a concern for the institution.

"The State Prosecutor, as a law enforcement institution, should not consider how a case may affect elections or daily politics," he says.

Analyst Imer Mushkolaj has a similar opinion. According to him, the Prosecutor's Office and other justice institutions should respond as soon as possible, especially when decisions affect the executive branch.

However, Mushkolaj adds that in Kosovo political parties often interpret judicial decisions in different ways.

"Such an approach, unfortunately, could continue even if we now had a decision or response from the Prosecutor's Office, especially when we are even closer to holding local elections, as well as the possibility of holding other early [parliamentary] elections," says Mushkolaj.

Kosovo is awaiting the publication of the Constitutional Court's judgment, dated September 30, which found that the constitutive session of the Assembly, which began on April 15, has not been concluded and that it must be concluded within 12 days of the entry into force of this judgment.

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