Constitutional Court

KI177 / 18, KI182 / 18 and KI191 / 18, Applicants: Rrahman Halili, Gani Bekteshi and Xhevat Shala, Constitutional Review of 3 Decisions of the Supreme Court of the Republic of Kosovo, issued between 10 September and 18 October 2018

KI177 / 18, KI182 / 18 and KI191 / 18, Decision of 14 May 2019, published on 7 June 2019

 Key words: individual claim, judicial protection of rights, the referral is manifestly ill-founded

The Applicants filed a claim in the Basic Court in Mitrovica – Branch in Skenderaj, against the Government of the Republic of Serbia, for compensation of material and immaterial damages caused to them during the war between 1998 and 1999.

The regular courts were declared incompetent to decide on this matter and, finally, having referred to the relevant provisions of the Law on Contested Procedure, the Supreme Court justified that in these cases there apply the norms of international law, for which the domestic courts of the country are not competent to decide, that in this legal matter is competent to decide the court in the territory of which is located the seat of the Assembly of the Republic of Serbia. The Applicants have claimed before the Constitutional Court that their rights under the Constitution, namely Articles 21, 22, 53 and 54 of the Constitution, and Article 6 of the ECHR, as well as Article 15 of the UDHR, have been violated. The Applicants had three main categories of claim: (i) the implementation of the “per loci” principle (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, having reviewed the claims of the applicants, reasoned that the findings of the regular courts were reached after a thorough examination of all the arguments and interpretations put forward by the Applicants and they were given the opportunity to present the arguments and legal interpretations which they consider relevant to their cases, at all stages of the proceedings. The Constitutional Court also recalled the case law of the ECHR on several occasions where the procedural barriers imposed by the principle of sovereign state immunity have been highlighted in relation to judicial proceedings that may be brought against a state in the domestic courts of another state. The Court also considered it important to emphasize the fact that the regular Kosovo courts did not adjudicate on the applicants’ right to seek damage compensation, but only regarding the territorial jurisdiction of the Kosovo courts to conduct a procedure against another state. Consequently, the Constitutional Court found that the claims were evidently not based upon constitutional grounds and therefore should be declared inadmissible.