Constitutional Court

KI 42/20, Applicant: Armend Hamiti, Request for constitutional review of Decision KPK No. 797/2019 of the Kosovo Prosecutorial Council of 23 December 2019 in conjunction with the appointment process of the Chief Prosecutor of the Special Prosecution Office of the Republic of Kosovo

 KI 42/20, Resolution on inadmissibility of 29 July 2020, published on 31 August 2020

Keywords: individual referral, administrative procedure, non-exhaustion of legal remedies, inadmissible referral

In the present case, the Applicant applied for the position of the Chief Prosecutor in the Special Prosecution Office of the Republic of Kosovo based on the vacancy announced by the Kosovo Prosecutorial Council.

The Kosovo Prosecutorial Council submitted a “final notice” to the Applicant, in which case he was informed that the Kosovo Prosecutorial Council did not vote him for the position of Chief Prosecutor in the Special Prosecution Office of the Republic of Kosovo. The Applicant was also notified: “this result ranks you in the fourth (4) position in competition with other candidates, and does not rank you as the final candidate for voting in the KPC”.

In the Constitutional Court the Applicant complained that his rights and freedoms guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], and 110 (3) [Kosovo Prosecutorial Council] of the Constitution of the Republic of Kosovo have been violated.

The Court recalled that the rule on exhaustion of legal remedies under Article 113.7 of the Constitution, Article 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure obliges that the Applicants who wish to file their case before the Constitutional Court must first use the effective legal remedies available in accordance with the law, against a challenged judgment or decision.

The Court noted that in the circumstances of the present case, in addition to the possibility of objecting to the selection process of the Chief Prosecutor of the Special Prosecution Office of the Republic of Kosovo within the Kosovo Prosecutorial Council, the applicable laws also refer to other legal remedies defined by Law No. 03/L-202 on Administrative Conflicts. The Court noted that Articles 13 and 14 of the Law on Administrative Conflicts relating to the possibility of initiating an administrative conflict provide: (i) an administrative conflict may be initiated only against an administrative act issued in the administrative procedure in the second instance; (ii) the administrative conflict can also be initiated against the administrative act of the first instance, against which in the administrative procedure, the complaint is not allowed; and, (iii) the administrative conflict may be initiated also when the competent body has not issued a relevant administrative act upon the request or a complaint of the party, under the conditions provided by this law.

The Court found that the Applicant failed to substantiate why the regular legal remedies before the regular courts were for some reason not available to him or were ineffective in the particular circumstances of the case or that there were special circumstances due to the to which he would be exempted from the obligation to exhaust all legal remedies.

The Court concluded that the Applicant’s Referral should be declared inadmissible, because not all legal remedies have been exhausted in accordance with Article 113.7 of the Constitution, Articles 20 and 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure.