Constitutional Court

KI02/19, KI03/19, KI04/19 and KI05/19, Applicant: Halil Mustafa and 3 others, Constitutional review of 4 decisions of the Supreme Court of Kosovo rendered between 27 July 2011 and 14 October 2013

Halil Mustafa (KI02/19), Zeqir Rexhepi (KI03/29), Remzi Rushiti (KI04/19), Hasan Geci (KI05/19), Resolution on Inadmissibility, rendered on 20 June 2019, published on 17 July 2019

Keywords: Individual referral, “Ngritja e Zërit”, war damages, manifestly ill-founded referral

The Applicants filed a claim with the Basic Court in Mitrovica – Branch in Skenderaj, against the Government of Serbia, for compensation for material and non-material damage caused to them during the war.

The regular courts were declared incompetent to decide on this matter and, finally, referring to the relevant provisions of the Law on Contested Procedure, the Supreme Court reasoned that in these cases the norms of international law apply for which the courts of the country are not are competent to decide, but competent in this legal matter is the court in the territory of which is the seat of the Assembly of Serbia.

The Applicants before the Constitutional Court alleged that their rights established in the Constitution were violated, namely Articles 21, 22, 53 and 54. The Applicants had three main categories of allegations: (i) the application of the principle “per loci” [ratione loci] (ii) the obligation to implement international human rights standards and (iii) their right to judicial protection of rights and the right of access to justice.

The Constitutional Court, after considering the allegations of the Applicants, reasoned that the findings of the regular courts were reached after a detailed examination of all the arguments and interpretations put forward by the Applicants and they were given the opportunity that in all stages of the proceedings present the arguments and legal interpretations that they consider relevant to their cases. The Constitutional Court also recalled the case law of the ECtHR in several case where the procedural barriers imposed by the principle of sovereign state immunity have been highlighted in relation to judicial proceedings that may be conducted against a state in the domestic courts of another state. The Court also considered it important to emphasize the fact that the regular courts of Kosovo did not adjudicate on the Applicants’ right to seek the compensation of damage, but only regarding the territorial jurisdiction of the courts of Kosovo to conduct a proceeding against another state.

Therefore, the Constitutional Court found that the referrals are manifestly ill-founded on constitutional basis and should be declared inadmissible, whereas in one of the Referrals (KI05/19) it found that it was submitted out of time.