Constitutional Court

KI147/18, Applicant: Arbër Hadri, Constitutional Review of Decision 06/375 of the Committee on Agriculture, Forestry, Rural Development, Environment and Spatial Planning of the Assembly of Kosovo on the Recommendation of Candidates for the Election of the Director of the Agency for the Management of Memorial Complexes of Kosovo, of 22 May 2018, and Decision No. 06-V-151, of the Assembly of Kosovo on the Election of the Director of Agency for the Management of Memorial Complexes of Kosovo, of 6 June 2018.

KI147/18, Resolution on Inadmissibility of 4 September 2019, published on 22 October 2019

Keywords: Individual referral, administrative procedure, employment dispute, non-exhaustion of legal remedies

The Applicant applied to be elected Director of the Agency for the Management of Memorial Complexes of Kosovo, following the vacancy announced by the Assembly of Kosovo. After the relevant Parliamentary Committee conducted interviews with the candidates for Director of the Agency, through Decision [06/375] it decided to submit to the Assembly a recommendation for voting of the two candidates in the Plenary Session of the Assembly, namely B.Z. and B.M., who were awarded most points by the relevant Commission. The Applicant was not included in the Decision [06/375] proposed by the Parliamentary Committee, having been evaluated as the third candidate with the most points for Director of the Agency. The Assembly voted for the Director of the Agency, and by secret vote, with 45 (forty-five) votes “in favor” of the total of 85 (eighty-five) MPs who took part in the voting, and by Decision [no.06-V-151] elected one of the candidates proposed by the Parliamentary Committee, namely B.Z. in the position of Director of the Agency.

The Applicant had addressed the Assembly twice regarding the selection of the Director of the Agency, the first time by the Request for Instruction, and the second time, by the Complaint regarding the procedures followed for the election of the Director of the Agency. According to the case file, the Applicant had received no response from the Assembly.

The Applicant alleged before the Constitutional Court that the Decision [06-375] of the Parliamentary Committee and the Decision [no.06-V-151] of the Assembly to elect the Director of the Agency had been issued in violation of his rights and fundamental freedoms guaranteed by Articles 24 [Equality before the Law], 31 [Right to Fair and Impartial Trial] and 45 [Freedom of Election and Participation] of the Constitution.

In dealing with the Applicant’s allegations, the Court first examined whether the Applicant has met the criterion of exhaustion of all legal remedies provided by law, as specifically required by paragraph 7 of Article 113 of the Constitution and the relevant legal provisions and the Rules of Procedure. The Court noted that the Applicant (i) had not used all legal remedies available to him to challenge the relevant Decisions of the Assembly and moreover (ii) did not argue before the Court why they were not effective and/or sufficiently certain not only in theory but also in practice in the circumstances of his case. Therefore, the Court, relying on the standards established in its case-law in similar cases and also on the case-law of the ECtHR, found that the Applicant did not meet the admissibility criteria as he had not exhausted the legal remedies as set out in paragraph 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law and item (b) of paragraph (1) of Rule 39 of the Rules of Procedure, and as such, the Referral was declared inadmissible.