Constitutional Court

KI133/18, Applicant Mehdi Selmani and others, constitutional review of Decision Rev. No. 216/2018 of the Supreme Court of 4 July 2018

KI133/18, Resolution on Inadmissibility of 27 November 2018, published on 27.02.2019 

Keywords: individual referral, constitutional review of decision of the Supreme Court of Kosovo, the fourth instance court

The Applicants submitted a Referral pursuant to Article 113.7 of the Constitution, Articles 27 and 47 of the Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo and Rule 32 of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo.

The Applicants requested the constitutional review of the challenged decision, which allegedly violated all Applicants’ rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] and Article 49 [Right to Work and Exercise Profession] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution).

However, in the present case, the Court noted that the Applicants, despite the fact that they stated in their Referral that their constitutional rights and freedoms were violated, did not explain with any sentence or paragraph that who violated their constitutional rights, in what way and how they bring them in connection with the court decisions.

The Court, after examining the Applicants’ Referral, found that the regular courts in the present case sufficiently reasoned their decisions, and such reasoning was not considered arbitrary by the Court. The Court also notes that the Applicants do not provide any arguments to justify their allegations that there has been a violation of their right to a fair trial in any way, except that they are dissatisfied with the outcome of the concrete procedure.

Therefore, the Court found that nothing in the case submitted by the Applicants indicates that the proceedings before the regular courts were unfair or arbitrary so that the Constitutional Court was satisfied that the Applicants were denied any procedural guarantees that would lead to a violation of the right to fair and impartial trial, guaranteed by Article 31 of the Constitution, namely Article 6 of the ECHR.

Regarding the allegation of a violation of Article 49 of the Constitution, the Court found that the regular courts in their decisions did not at any moment address or dealt with the issue of the Applicants’ right to work or the rights and obligations arising from the right to work. Specifically, the courts did not take decisions by which the Applicants were in any way denied or prohibited from working or exercising their profession or in some way prevented them to exercise their rights under the employment relationship.

Therefore, the Court found as ungrounded the Applicants’ allegations of violation of Article 49 [Right to Work and Exercise Profession] of the Constitution.

The Court finally concluded that it cannot act as a “fourth instance court”.