Constitutional Court

KI158/19, Applicant: Fatos Dervishaj, constitutional review of the inactions of public authorities regarding the requests of the Applicant

KI158/19, Resolution on Inadmissibility, of 10 June 2020, published on 24 July 2020

Keywords: individual referral, failure of public authorities to take actions, equality before the law, effective legal remedies, judicial protection of rights, protection of property, inadmissible referral

The Applicant challenged before the Constitutional Court the constitutionality of the inaction of the public authorities, namely the Basic Prosecution in Prishtina, the State Prosecutor’s Office, the Kosovo Prosecutorial Council, the Ombudsperson and the Supreme Court, regarding his requests for filing a criminal report, exclusion of prosecutor M.LL. and the disciplinary responsibilities of prosecutors, the transfer of the case to the competence of the Special Prosecution and the administrative silence of these authorities.

The Court, having assessed the allegations of the Applicant in relation to the criminal report, considered that his referral in respect of this allegation should have been declared out of time since from the day of receipt of the last decision of the Basic Prosecution in Prishtina there had passed more than four (4) months until the submission of the Referral. As regards the Applicant’s claim for the exclusion of the case prosecutor M.LL. and the disciplinary responsibilities of prosecutors, the Court found that there does not stand the fact that the public authorities did not act because based on all his  documents he had received answer from both, the Basic Prosecutor in Prishtina and the Supreme Court. As regards his allegation that the public authorities had not transferred the criminal case [PP.nr.65 / 17] for treatment to the Special Prosecution, the Court considered that the issue of sending the criminal case in question to the competence of the Special Prosecution for treatment, was in the exclusive competence of the Basic Prosecution in Prishtina. Further, the Court, based on the case file, noted that the Applicant’s request for having the criminal case [PP. no. 65/17] sent to the competence of the Special Prosecution, was based simply on his suspicion that the prosecutor M.LL., who was in charge of the case, was prolonging the conduct of the investigation and the filing of the indictment against the suspects M.G., V.I., D.R., M.B., N.H., G.X. and S.B-SH. Moreover, in relation to this allegation, the Applicant alleged a violation of Article 24 [Equality before the Law] but the Court noted that he merely referred to discrimination, without explaining how the violation of this right occurred, and by not explaining what was the “different treatment, without objective and reasonable justification, of persons in relevantly similar situations.”

Further, the applicant complained about the inaction of the Ombudsperson, claiming in violation of Articles 54 and 132 of the Constitution and Article 45 of the European Convention on Human Rights. The Court, having assessed the Applicant’s allegations regarding the proceedings before the Ombudsperson, found that Articles 54 and 132 of the Constitution are not articles that in themselves contain a right or freedom. The above two articles are therefore not articles that can be interpreted independently of other constitutional provisions, important for this case. The Applicant referred also to the violation of Article 32 [Right to Legal Remedies], but failed to justify in any way what legal remedy he was deprived of and against which decision he did not have the opportunity to submit any legal remedy, but he linked the same allegations with  Article 45 of the ECHR, for which the Court found that Article 45 of the ECHR, that is part of Chapter II [ECtHR European Court of Human Rights], cannot serve as a basis for building a claim for violation of the rights guaranteed by the ECHR before the Constitutional Court, given that this article refers to the competencies of the ECtHR regarding the decision-making procedures and not the competencies of the domestic courts, part of the protection mechanism guaranteed by the ECHR (see, analogically  the Constitutional Court case KI108/18, Applicant: Blerta Morina, Resolution on Inadmissibility, of 5 September 2019, paragraph 195).

In conclusion, in accordance with Articles 20 and 49 of the Law, and Rules 39 (1) (c), 39 (2) and 59 (2) of the Rules of Procedure, the Court decided to declare the Applicant’s Referral inadmissible, in all its parts.