Constitutional Court

KI39/20, Applicant, Cihan Ozkan, Constitutional review of Decision AA. No. 669/2019 of the Court of Appeals of Kosovo of 22 October 2019

KI39/20, Resolution on Inadmissibility, of 27 January 2021, published on 12 February 2021

Keywords: Individual referral, expulsion of aliens, Article 1 of Protocol 7 of the ECHR, premature Referral

The matter raised in the Applicant’s Referral concerned the procedure of forcible expulsion of aliens, in relation to which, according to the case-law of the ECtHR, Article 1 (Procedural safeguards relating to expulsion of aliens) of Protocol no. 7 to ECHR applies, which provides procedural safeguards applied in relation to the forcible expulsion of aliens. In this context, the Applicant challenged before the Constitutional Court the court proceedings related to the Order for his forcible expulsion from Kosovo, whereby the Court of Appeals approved the appeal of the Applicant and quashed the Judgment of the Basic Court and remanded the Applicant’s case to the Basic Court for reconsideration and retrial. Whereas, the Supreme Court rejected as inadmissible the Applicant’s request for extraordinary review of the Judgment of the Court of Appeals. Thus, the Applicant’s case complained of before the Court was not finally resolved as this case was remanded for reconsideration to the Basic Court according to the findings of the Decision of the Court of Appeals.

The main issue raised by the Applicant before the Court was related to the allegation that the Court of Appeals by quashing the Judgment of the Basic Court  in its entirety, including item (I) of the Judgment for which neither party filed an appeal with the Court of Appeals, violated the principle “res judicata” thereby violating the right to a fair trial guaranteed by Article 31 of the Constitution and Article 6 of the ECHR.

In this regard, the Court noted that the case law of the ECtHR, according to which in accordance with Article 53 [Interpretation of Human Rights Provisions] of the Constitution, the Court is obliged to interpret the fundamental rights and freedoms guaranteed by the Constitution, stipulates that decisions regarding the entry, stay and deportation of aliens are not related to the determination of the Applicants’ civil rights and obligations or the criminal charge against him/her within the meaning of Article 6, paragraph 1 of the ECHR. Therefore, regarding the forcible expulsion of aliens (as is the case with the proceedings challenged by the Applicant before the Court), Article 1 (Procedural safeguards relating to expulsion of aliens) of Protocol no. 7 to the ECHR applies, which contains the procedural guarantees that apply in relation to the forcible expulsion of aliens.

In this context, considering that the Applicant’s case is being reviewed by the regular courts and in view of the fact that Article 6 of the ECHR does not apply to cases of proceedings of expulsion of aliens from the country, the Court reiterated that it cannot assess whether the Applicant’s procedural rights guaranteed by paragraph 1 of Article 1 of Protocol No. 7 to the ECHR have been respected, as elaborated above, without a final decision by the regular courts regarding the “legality” of the decision for his expulsion from Kosovo, a procedure which the Applicant challenges before the Court. Hence, the Court found that the proceedings initiated by the Applicant are still pending, and based on this it can be concluded that the Applicant’s Referral before the Constitutional Court is premature.

Therefore, the Court found that the Applicant submitted his Referral to the Constitutional Court before exhausting all effective remedies established in the relevant legislation. Therefore, the Applicant’s Referral before the Constitutional Court is premature and is to be declared inadmissible, on constitutional basis, as established in Article 113.7 of the Constitution, foreseen in Article 47 of the Law and further specified in Rule 39 (1) (b) of the Rules of Procedure.