Prishtina, 16 April 2026 – The Kosovo Law Institute (KLI) calls on the Assembly of the Republic of Kosovo not to circumvent procedures in the review of the Draft Law on the State Bureau for Verification and Confiscation of Unjustifiable Assets (hereinafter: the Draft Law on the Bureau). This should be ensured by allowing, between the two parliamentary readings, the identification and addressing of any potential irregularities in the Draft Law, so that it can withstand a potential review by the Constitutional Court.
Initially, with regard to this Draft Law, KLI has previously emphasized that the Government of the Republic of Kosovo, contrary to its Rules of Procedure, bypassed the process of public consultations by approving and submitting the Draft Law on the Bureau to the Assembly without conducting any public consultation process.
Following its review of the Draft Law on the Bureau, which is expected to be reviewed this Friday in the Assembly, KLI has found that, in principle, most of the recommendations of the Constitutional Court’s judgment have been addressed. However, several issues remain, which can easily be addressed between the two (2) readings, so as to avoid any remaining gaps that could jeopardize the constitutionality of the Draft Law on the Bureau.
The first issue that should be discussed is the required majority for the election of the Director General of the Bureau. Despite the provisions of Article 80.1 of the Constitution, which provide that, in principle, all decisions are taken by a simple majority of votes, there are instances where the Venice Commission has emphasized the possibility that, in certain cases, a higher voting majority may be required. In an opinion addressed to Bulgaria (where this issue is regulated by the Constitution in the same manner as in Kosovo), the Commission noted that “a national constitutional court will usually intervene where there is a lack of a safeguard, rather than where ordinary law provides for a stricter safeguard, as in the present case, which would strengthen the independence and representative character of [the authority competent to initiate civil confiscation].”. Therefore, in the present case, the Venice Commission recommended the “reintroduction of the qualified majority requirement in Article 4 [of the Law].”.[1] Based on this, between the two (2) readings, the possibility should be considered of stipulating by law that the election of the Director and the members of the Commission be carried out by a majority vote of all members of parliament.
Another issue that should be addressed is the absence of a specialized division within the Court of Appeals for handling these cases, while such a division is envisaged at the first instance level.
Furthermore, an issue that should be addressed is the compensation of parties in the proceedings. The Constitutional Court, in its judgment, referring to the first Opinion of the Venice Commission, has reiterated that the law must guarantee compensation for damages suffered by a party in cases where the confiscation procedure ultimately proves to be unsuccessful. Although the Draft Law on the Bureau addresses this issue in Article 64, it does so only in general terms, by referring to the application of legislation governing obligations, without clearly specifying liability for damage or the types of damage to be compensated. Therefore, between the two (2) readings, the possibility should be considered of further clarifying this provision, so that the right to compensation does not remain merely declaratory, but is regulated clearly and effectively within the Draft Law on the Bureau itself.
Another issue that should be further clarified is the burden of proof in judicial proceedings. Although the Draft Law on the Bureau provides that the Bureau, before submitting a confiscation proposal, must meet the civil standard of the balance of probabilities and present evidence in court in support of its proposal, the current formulation leaves room for the burden of proof to be interpreted as shifting almost automatically to the party once a formally complete proposal is submitted to the Court. The appropriate standard should be that, before the burden of proof shifts to the party, the Bureau must at least demonstrate “prima facie” the existence of unjustifiable assets. For this reason, between the two (2) readings, the possibility should be considered of clearly specifying that the burden of proof does not shift to the party automatically upon the submission and formal completion of the proposal, but only after the Court establishes that the Bureau has met its initial burden of substantiating the merits of its claim. This would strengthen legal certainty and provide greater clarity on the balance between the effectiveness of the procedure and the protection of the parties’ rights.
The authority of the Director General, rather than the Commission, to approve the Code of Conduct for Bureau officials is also an issue that should be carefully considered between the two (2) readings.
Another issue that should be further clarified is the definition of a bona fide purchaser. The current formulation of the Draft Law on the Bureau links this status primarily to the price paid and whether the purchaser knew or should have known that the assets were unjustifiable. However, this formulation remains insufficiently clear. Therefore, between the two (2) readings, the possibility should be considered of reformulating this provision more clearly, so as to avoid leaving room for broad or inconsistent interpretations and to ensure that the protection of bona fide third parties is regulated more precisely and is more effectively applicable in practice.
Given that this Draft Law has been struck down twice by the Constitutional Court, once on its merits and once due to the procedure followed, that it is being reviewed for the third time in the Assembly, and that it concerns a law with a high potential to infringe upon human rights, the Assembly should under no circumstances adopt this Draft Law through an expedited procedure. All issues raised should be addressed comprehensively between the two (2) readings in the Assembly.
[1] European Commission for Democracy Through Law (Venice Commission), “Opinion on the Sixth Revised Draft Act on Forfeiture of Assets Acquired through Criminal Activity or Administrative Violations of Bulgaria” CDL-AD(2011)023: ¶17-9.