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25 Nottingham L.J. 16 (2016)
The Legal Prospective Force of Constitutional Courts Decisions: Reflections from the Constitutional Jurisprudence of Kosovo and beyond

handle is hein.journals/notnghmlj25 and id is 24 raw text is: THE LEGAL PROSPECTIVE FORCE OF CONSTITUTIONAL COURTS DECISIONS: REFLECTIONS FROM THE CONSTITUTIONAL JURISPRUDENCE OF KOSOVO AND BEYOND VISAR MORINA* ABSTRACT One of the canons of centralised systems of constitutional review is the legally-binding nature of constitutional court decisions. This rule has clearly been provided in the Kosovo Constitution, which gives Constitutional Court decisions an incontestable degree of legally-binding force. But behind this constitutional stance, lies an intricate complexity which involves many open questions that this paper seeks to address. Questions relating to the precedential nature of Court decisions and, in particular, whether it is entitled to digress from its own previous rulings show the complexity of issues pertaining to judicial interpretation. The article initially examines the basic features of constitutional review in Kosovo and analyses the binding nature of the court decisions in the comparative context. The article subsequently explores how the prospective force of constitutional court decisions is limited by the type of constitutional review proceedings and how the precedential effect of constitutional court decisions is received in continental legal systems. The article also sheds light on the difficulty in distinguishing between the decidendi and dicta as far as the legally-binding nature of constitutional courts decisions. The author argues that is essential for centralized constitutional review systems that lower courts respect the precedential value of constitutional court decisions in order to increase judicial efficiency and to amplify the legal prospective-force of constitutional court decisions as a tool for ensuring greater constitutional stability and interpretational coherence in the constitutional democracy. INTRODUCTION Constitutions often state that decisions of constitutional courts are legally binding for everyone. However, a number of questions lurk behind the general proposition of their binding effect, which this paper seeks to examine from a doctrinal, comparative and jurisprudential perspective. Sometimes it is unclear to what extent constitutional court decisions are legally binding prospectively, and to what degree such decisions bind the legislature or judiciary in future undertakings. This in parallel goes with the question as to whether constitutional courts decisions attain the status of a precedent in a civil law system by directing institutional behaviours in the centralized systems of constitutional review. This article analyses the nature of the legally-binding effects of constitutional court decisions and examines their prospective legal force. The paper focuses on the case of the Kosovo Constitutional Court (hereinafter as KCC), whose decisions over the past few years not only have had a profound impact upon the functioning of state institutions but have occasionally revealed ambiguity and constitutional uncertainty regarding the margins of legal abidingness. The paper initially outlines the character- istics of constitutional review in Kosovo and continues with a comparative analysis, particularly focussed on Germany, regarding the binding nature of constitutional court decisions. The paper then seeks to analyse the parameters of the prospective force of *Lecturer in Law, University of Prishtina, Kosovo.

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