Constitutional Court

KI 79/17, Applicant: Vahide Badivuku, Request for the constitutional review of Decision AA. No. 01/2017 of the Supreme Court of Kosovo of 8 February 2017

KI 79/17, Resolution on inadmissibility of 11 January 2018, published on 24 April 2018

Key words: Individual referral, civil procedure, state prosecutor, manifestly ill-founded

The Applicant requested from the Constitutional Court to review the constitutionality of the Decision of the Supreme Court with which hers appeal was rejected as inadmissible on the grounds that “under Article 104, paragraph 5 of the Constitution of the Republic of Kosovo, (…) judges are entitled to complain against the decision of the  dismissal  directly to the Supreme Court of Kosovo “, whereas no constitutional provision or any other law provides ” the right of direct appeal to the Supreme Court of Kosovo against a decision of the Kosovo Prosecutorial Council or the decision to the dismissal”. Applicant had alleged violation of Article 102 par 2 and 5 of the Constitution, stating that amongst others that also with the contested decision has been violated the right to equal access to the court.

The Court found that the administrative decisions of the Prosecutorial Council through which was found that the Applicant did the disciplinary violations in the exercise of hers duty as  the Prosecutor as well as the ruling of the Supreme Court were sufficiently reasoned and were not indications of any significant arbitrariness that would result in a violation of the constitution.

The Court further stated that “it considers that the right to access to a court is not and cannot be absolute. In fact, it has been subject to restrictions (especially when it comes to assumptions regarding the admissibility of legal remedies), since it requires the regulation of the state in its own nature, which has a certain margin of appreciation in that regard”.

In these circumstances of the case, when the Applicant did not sufficiently support the allegations of the constitutional violations, the Court declared the Referral