Constitutional Court

KI25/19 and KI27/19, Applicant: Hysen Manxholli and Bajram Dajaku, constitutional review of decisions of the Supreme Court of the Republic of Kosovo, Rev. No. 239/2018 of 3 September 2018 and Rev. No. 147/2018 of 7 May 2018

KI25/19 and KI27/19, Resolution of 23 July 2019, published on 17 September 2019

Keywords: individual referral, judicial protection of rights, inadmissible referral, manifestly ill-founded referral

The Applicants filed a lawsuit with the Basic Court in Mitrovica-Branch in Skenderaj against the Government of the Republic of Serbia for compensation of material and non-material damage caused to them during the war between 1998 and 1999.

The regular courts were declared incompetent to decide on the matter and, finally, referring to the relevant provisions of the Law on Contested Procedure, the Supreme Court reasoned that the norms of the international law apply, for which contests the domestic courts are not competent to decide, but competent in this legal matter is the court in which territory is located the seat of the Assembly of the Republic of Serbia. The Applicants before the Constitutional Court alleged that their rights under the Constitution, namely Articles 21, 22, 53 and 54, and Article 6 of the ECHR, as well as Article 15 of the UDHR, were violated. The Applicants had three categories of main allegations: (i) the application of the principle “per loci” [ratione loci] (ii) the obligation to apply 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 Applicants’ allegations, 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 afforded them the opportunity at all stages of the proceedings to present legal arguments and legal interpretations which they consider relevant to their cases. The Constitutional Court also recalled the ECtHR case law in a number of cases where the procedural barriers imposed by the principle of sovereign immunity of states have been highlighted in relation to judicial proceedings that may be conducted against one 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 the Applicants’ right to seek compensation of damage, but only with regard to the territorial jurisdiction of the Kosovo courts to institute proceedings against another state. Therefore, the Constitutional Court held that the Referrals are manifestly ill-founded on constitutional basis and must be declared inadmissible.