Constitutional Court

KI138/18, request for constitutional review of Order, I. GJA. No. 1/2018-141, of the President of the Basic Court in Prizren, Mr. Ymer Hoxha, of 8 August 2018

KI138/18, Gent Gjini

Resolution on Inadmissibility of 23 January 2019

Keywords: Individual referral, premature referral, non-exhaustion of legal remedies, request for interim measure, request for a hearing; administrative procedure

The Applicant is a lawyer practicing his profession of a lawyer in Prizren.

The subject matter is the constitutional review of an Order, rendered by the President of the Basic Court in Prizren, by which “The security employees and the receptionist are ordered not to allow the entrance of attorneys at law and parties in the building of the Court, without invitations or oral permits of the President of the Court, or judge, except at the office of submitting letters”.  

The Applicant alleged that the Order violated his rights guaranteed by Articles 23 [Human Dignity], 24 [Equality Before the Law] and 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution. The Applicant also alleged violation of Article 41 of the Law on Bar, Article 25 of the Law on Courts and Article 6.1. of the Statute of the Bar Association. With respect to these allegations, the Applicant also requested the imposition of an interim measure to stop the implementation of the challenged Order as well as to schedule a hearing session where the arguments relating to the case would be presented.

The Constitutional Court declared the Referral inadmissible as it was filed before the Applicant had exhausted all legal remedies in administrative proceedings, and as such is premature. To reach this conclusion, the Court highlighted all relevant constitutional and legal provisions clearly indicating that the Applicant had an opportunity to challenge the Order in question in an administrative proceeding. The Court referred to the fundamental principles of exhaustion of legal remedies built over the years by the European Court of Human Rights as its case law. In this regard, the Court also stated that the Applicant had not substantiated that the legal remedies provided by the Law on Contested Procedure were ineffective in his case. He merely considered, even after the Court’s request for clarification, that the Constitutional Court is the only legal remedy.

For many reasons, which were extensively elaborated in the resolution, the Court did not agree with this allegation of the Applicant that he did not have available legal remedies, and as a result declared the Referral inadmissible due to non-exhaustion of all legal remedies under Article 113.7 of the Constitution, Article 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure. As the Referral was declared inadmissible, the Court also rejected the Applicant’s request for interim measure and a hearing – considering them as ungrounded and unnecessary.