Constitutional Court

KI56/18, Applicant: Ahmet Frangu, Constitutional review of Judgment ARJ. UZVP. No. 67/2017 of the Supreme Court, of 22 December 2017

KI 56/18, Judgment adopted on 22 July 2020, published on 10 August 2020

Keywords: individual referral, admissible referral, right to respect for private and family life, right to an effective remedy, judicial protection of rights, principal death register, formal access of public authorities, public hearing, victim status, violation of the right to private and family life, violation of the right to an effective remedy

The circumstances of the present case relate to the Applicant’s request for registration of his deceased son I.F. in the principal death register (hereinafter: the PDR). The Applicant’s deceased son had traveled to Sweden for the purpose of recovering from a serious illness. During his stay in Sweden, the Applicant’s son applied for asylum, but using another name, namely the name A.H. The Swedish authorities issued him a card certifying that the Applicant’s son was an asylum seeker, namely the LMA-card in the name under which he had applied, namely A.H. The Applicant’s son died at a health institution in Sweden. The medical report regarding his death was issued on behalf of A.H. After his death, the Embassy of the Republic of Kosovo in Sweden issued the submission [No. 09/13] by which (i) clarified that it informed the authorities of the Republic of Kosovo about the death of the citizen I.F; (ii) confirmed that there is no impediment to the repatriation of the deceased I.F. in the Republic of Kosovo; and (iii) requested the company responsible for funeral services at Linkoping to enable transportation to Kosovo for the deceased I.F. The latter was buried in Prishtina on June 16, 2013.

The Applicant addressed the Municipality of Prishtina, with a request that his deceased son I.F., be registered in the PDR  based on Law No. 04/L-003 on Civil Status (hereinafter: the Law on Civil Status). The Municipality of Prishtina by Decision [No. 01-203-194645] of 16 October 2013 rejected the Applicant’s request, inter alia, on the grounds that the documents issued by the Swedish health institutions do not coincide with those issued in the Republic of Kosovo, because the former coincide with the person A.H., while the latter with the person I.F. The Applicant challenged the abovementioned Decision, without success, in the Civil Registration Agency of the Ministry of Internal Affairs, in the Basic Court in Prishtina, the Court of Appeals and the Supreme Court. The Civil Registration Agency and the regular courts of all three instances upheld: (i) Decision [No. 01-203-194645] of 16 October 2013 of the Municipality of Prishtina; and (ii) rejected the Applicant’s application for registration of his deceased son I.F. in the PDR with the reasoning that the documents issued by the Swedish health institutions do not coincide with those issued in the Republic of Kosovo.

The Applicant challenges the findings of the regular courts before the Court, alleging that the Decisions of the public authorities were issued in violation of his fundamental rights and freedoms guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] 53 [Interpretation of Human Rights Provisions] and 54 [Judicial Protection of Rights] of the Constitution and the European Convention on Human Rights (hereinafter: the ECHR). In the circumstances of the present case, the Court decided to hold a hearing in order to clarify the issues of fact and law, and at the same time, the Municipality of Prishtina, the Civil Registration Agency and the Ministry of Foreign Affairs clarified that the lack of medical report under the name of the I.F., has prevented the registration of I.F. in the PDR, while the Applicant clarified that the public authorities have not taken into account the facts and specifics of his case and moreover, as a result of the abovementioned non-registration, the wife and minor son of the deceased have also remained with unresolved civil status.

In examining the Applicant’s allegations, the Court found that the Referral is admissible, as it found that the Applicant should be recognized the status of direct or indirect victim, a finding which was reached after elaborating and applying the case law of the European Court of Human Rights (hereinafter: the ECtHR).

Whereas, in examining the merits of the case, the Court initially clarified that the circumstances of the present case, which are related to the refusal of the public authorities to register the deceased son of the Applicant in the PDR , include issues related to the right to privacy of the Applicant and his right to judicial protection of rights and effective remedy, as guaranteed by Articles 36 [Right to Privacy] and 54 of the Constitution and 8 [Right to respect for private and family life] and 13 [The right to an effective remedy] of the ECHR.

With regard to matters relating to the right to privacy, the Court, applying the case law of the ECtHR insofar as it is relevant to the circumstances of the case, has clarified (i) the state’s obligations to protect privacy as guaranteed by the Constitution and the ECHR; (ii) the distinction between the negative and positive obligations of the State with regard to the protection of this right; (iii) the fact that in the circumstances of the present case, the State did not necessarily “interfere” with the rights of the Applicant, but failed to act to protect the latter, resulting in an assessment of the circumstances of this case from the point of view of positive obligations of the state; (iv) that the positive obligations of the State require, inter alia, that public authorities consider the specifics of a case and take measures to ensure the effective protection of the right to privacy, or by providing a legal framework that protects the rights of individuals or by determining the application of special measures appropriate to the circumstances of a case; and (v) that in such cases, the public authorities are obliged to consider the balance between the interests of the individual, including the nature of the allegations and whether they relate to “essential aspects” of private life and the obligations of the State, including whether they relate to “narrow and precise” or “broad and indefinite” obligations and the potential burden they impose on the state.

With regard to issues related to the right to judicial protection of rights and effective remedy, the Court, applying the case law of the ECtHR insofar as it is relevant to the circumstances of the case, has clarified (i) that these the rights imply the existence of a legal remedy which examines the essence of the content of the dispute, namely the allegations of an Applicant and enables the appropriate correction; (ii) the notion of “arguable” claim for the purposes of Article 54 of the Constitution and Article 13 of the ECHR; and (iii) the fact that in the context of claims for protection of private right, the legal remedy must enable consideration of the substance of the respective claims, and assessment of the balance between competing interests. In both cases, the purpose of the Constitution and the ECHR is important, to guarantee “practical and effective” and not “theoretical or illusory” rights.

In applying these principles in the circumstances of the present case, with regard to Article 36 of the Constitution in conjunction with Article 8 of the ECHR, the Court emphasized that public authorities, including the regular courts, beyond the finding that with regard to the death of the Applicant’s son the medical report confirming his death is missing, a finding that has resulted in the refusal of registration of the Applicant’s son in the PDR, with the serious consequence of leaving the civil status of his wife and deceased minor son unresolved, have not taken into account the fact that (i) it is not disputed that the Applicant’s son died; and (ii) such a fact was confirmed by the public authorities of the Republic of Kosovo, namely the Embassy of Kosovo in Sweden, where the death occurred. Furthermore, the public authorities, by rejecting the Applicant’s request for registration of his son’s death in the PDR, despite the fact that the same death was not contested, (i) not only had they formally applied the applicable law, thus not considering either the possibility of international legal cooperation with the Swedish state nor the possibilities provided through the provisions of the out-contentious procedure, but (ii) contrary to the constitutional requirements and those of the ECHR, did not consider the balance between the competing interests, namely the essence and features of the Applicant’s allegations and the obligations of the state to protect the right to private life.

The Court clarified that the examination of such a balance, would result in the finding that the Applicant’s allegations and claim are “narrow and clear” and do not result in disproportionate obligations to the State. Moreover, through such a refusal in the absence of a medical report, without taking into account any of the circumstances and specifics of the present case, the decisions of public authorities resulted in only “theoretical and illusory” constitutional rights for the Applicant, and not “practical and effective” constitutional rights, as required by the Constitution and the ECHR. Consequently, the Court found that the proceedings followed by the administrative and judicial system, contrary to the positive obligations of the state, did not result in the exercise of the Applicant’s right to respect for his private life, contrary to paragraph 1 of Article 36 of the Constitution in conjunction with Article 8 of the ECHR.

Whereas, with regard to Article 54 of the Constitution in conjunction with Article 13 of the ECHR, the Court stated that taking into account the abovementioned finding, the allegations of the Applicant of violation of Article 54 of the Constitution in conjunction with Article 13 of the ECHR, are clearly “arguable”, as established through the case law of the Court and that of the ECtHR. The Court further stated that contrary to the requirements of the aforementioned articles and the relevant case law, the legal remedies in the circumstances of the present case had neither resulted in examining the substance of the Applicant’s allegations nor had they enabled proper correction. The Court reiterated that the limited and extremely formal examination of the Applicant’s allegations, in isolation from the specifics of the case and the relevant consequences, resulted in a lack of practical and effective protection of judicial rights and the right of the Applicant for an effective remedy, contrary to Article 54 of the Constitution in conjunction with Article 13 of the ECHR.

Therefore, the Court found that the Judgments of the regular courts and the Decisions of the Civil Registration Agency and the Municipality of Prishtina are not in compliance with the Applicant’s fundamental rights and freedoms guaranteed by paragraph 1 of Article 36 of the Constitution in conjunction of Article 8 of the ECHR and Article 54 of the Constitution in conjunction with Article 13 of the ECHR, and consequently the latter should be declared invalid. The Court also through this Judgment ordered the Civil Registration Agency, to register the death of I.F., namely of the Applicant’s son by 30 October 2020, in the Principal Death Register.