Constitutional Court

KI57/22 and KI79/22, Applicants:  Shqipdon Fazliu and Armend Hamiti, Constitutional review of the Decision [KPK/Nr.475/2022] proposing Mr. Blerim Isufaj for the position of the Chief State Prosecutor, of 6 April 2022, of the Kosovo Prosecutorial Council, and of the Decision [KPK/nr.474/2022] rejecting the Report of 6 April 2022 of the Review Commission of the Kosovo Prosecutorial Council

KI57/22 and KI79/22, Resolution of 4 July 2022, published on 26 July 2022

Keywords: individual referral, Chief State Prosecutor, exhaustion of effective legal remedies

The Constitutional Court of the Republic of Kosovo reviewed the joined referrals in cases KI 57/22, submitted by Shqipdon Fazliu and KI 79/22, submitted by Armend Hamiti, both candidates for the Chief State Prosecutor of the Republic of Kosovo, who challenge the constitutionality of the Decision of 6 April 2022 of the Kosovo Prosecutorial Council proposing Mr. Blerim Isufaj for the position of the Chief State Prosecutor. The Court decided to declare the respective referrals inadmissible on procedural grounds, namely because the applicants have not exhausted the legal remedies, as stipulated by paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo.

The circumstances of the cases KI 57/22 and KI 79/22, pertain to results of the call for the selection of the Chief State Prosecutor announced by the Kosovo Prosecutorial Council. The Evaluation Panel which was established based on the regulation of the Prosecutorial Council adopted in 2019, namely Regulation no.06/2019 on Appointment of the Chief State Prosecutor and the Chief Prosecutors of the Prosecution Offices of the Republic of Kosovo, ranked the applicants in the second (2) place and fourth (4) place, respectively, whereas the candidate Blerim Isufaj, in the first place. Against the evaluation of the Evaluation Panel, the applicants filed objections with the Review Commission. The latter determined that the Law on Prosecutorial Council and the Regulation on Appointment of the Chief State Prosecutor were correctly applied during the evaluation process, nevertheless it recommended to the Evaluation Panel to review/supplement the reasoning with respect to some of the evaluation criteria. On April 6, 2022, the Prosecutorial Council (i) rejected the recommendations of the Review Commission; and (ii) based on article 17 (Voting Process) of the Regulation on Appointment of the Chief State Prosecutor, decided to propose the candidate ranked first by the Evaluation Panel to the President of the Republic for decree.

On 28 April 2022 and 6 June 2022, respectively, the applicants addressed their referrals to Constitutional Court, alleging that the Decision of the Prosecutorial Council proposing the candidate for the Chief State Prosecutor was rendered in violation of their rights and freedoms guaranteed by the Constitution and the European Convention on Human Rights.

As to the admissibility of the referrals, in view of the fact that the applicants have not exhausted the legal remedies provided by law, despite the criteria of paragraph 7 of article 113 of the Constitution, they claimed that they should be exempted from this constitutional obligation, maintaining, among others, that (i) the Law on the Prosecutorial Council does not provide for legal remedies against the decisions of the Prosecutorial Council; (ii) in reviewing the constitutionality of the decision of the Prosecutorial Council proposing the Chief State Prosecutor through Judgment KI 99/14 and KI 100/14, the Court, in 2014, had exempted the respective applicants from the obligation to exhaust the legal remedies established by law; and (iii) the proceedings before the Basic Court in Prishtina “take considerable time”. Whereas in terms of the merits of the referral, the applicants, in essence, (i) alleged the impartiality of the Prosecutorial Council; (ii) contested the legality and the constitutionality of the Regulation on Appointment of the Chief State Prosecutor, including the quota of three percent (3%) difference in scores between the candidates, in order for one or more candidates to be proposed to the Prosecutorial Council for voting and the fact that the Prosecutorial Council, including the Evaluation Panel members, may refuse the proposal of the Review Commission; and (iii) maintained that the findings of the Evaluation Panel, were biased, arbitrary and the scoring for the other interviewed candidates had not been accessible.

In assessing the admissibility of the applicants’ referrals, the Court first emphasized that it is not contentious that the applicants addressed the Court without having exhausted any legal remedy as stipulated in paragraph 7 of article 113 of the Constitution. As a consequence, and in order to assess whether the applicants meet the criteria to be exempted from this constitutional obligation, the Court initially elaborated and then applied to the circumstances of the concrete cases (i) the general principles stemming from the case-law of the European Court of the Human Rights and of the Court pertaining to the exhaustion of the legal remedies; (ii) the relevant case-law of the Court pertaining to the decisions of the Prosecutorial Council, the Judicial Council, but also those of other public authorities, whose decisions were challenged in terms of the selection or not to certain public functions; and (iii) the relevant principles elaborated through the opinions of the Venice Commission.

In the context of the above, the Court emphasized that based on the case-law of the European Court of the Human Rights, the criterion on the exhaustion of the legal remedies cannot be applied in an excessively formalistic way, and consequently, there can be exceptions to the rule, but only if the respective parties, based on the principle of the burden of proof, provide arguments before the Court that either a legal remedy does not exists, or otherwise, the existing legal remedy is not effective because (1) it is not “available and accessible”; and (ii) it is not “sufficiently certain not only in theory, but also in practice”. In addition, based on the same case-law, the respective applicants must provide arguments that they “did everything that could reasonably be expected from them to exhaust legal remedies”, considering that “mere doubts” of an applicant regarding the non-efficiency of a legal remedy, cannot serve as a justification to exempt him/ her from this constitutional obligation.

In applying these criteria to the circumstances of concrete cases, the Court emphasized that (i) a legal remedy exists and it is provided for in the Law on Administrative Conflicts and to which the Court has consistently referred through its case-law; and (ii) the respective applicants have not submitted any arguments that they fulfill the aforementioned criteria, namely pertaining to “availability”, “accessibility” and “sufficient certainty in theory and in practice”, which derive from the case-law of the Court and of the European Court of Human Rights. The Court, among others, clarified that (i) the fact that the Law on the Prosecutorial Council may have not provided for a specific legal remedy, does not exclude the applicability of other legal norms, including the Law on Administrative Conflicts; and (ii) the reference to the workload in the Basic Court of Prishtina, does not exempt an applicant of an individual referral from this constitutional obligation, because such an allegation, particularly if not substantiated through the relevant case-law, qualifies as ”a mere doubt” pertaining to the alleged non-efficiency of a legal remedy.

The Court underlined that the main argument of the applicants on the basis of which they claim exemption from the obligation to fulfill the constitutional criteria, is the reference to the Court’s case-law, namely to the Judgment KI 99/14 and KI 100/14, through which, in 2014, the Court, exceptionally and by referring to the circumstances of the respective case, had exempted the respective applicants from the obligation to exhaust legal remedies and had reviewed the constitutionality of the decision on proposing the Chief State Prosecutor, finding that it was unconstitutional. The Court also underlined that similarly, in two other Judgments, namely in Judgments KI 34/17 and KI 55/17, it had exempted the respective applicants from the obligation to exhaust legal remedies and had reviewed the constitutionality of the respective decisions for the election of the President of the Supreme Court and the Court of Appeals, respectively. The Court further emphasized that in the context of individual control, there is no other case in its case-law, in which such exceptions were made, not only in reviewing the acts of the Prosecutorial Council and the Judicial Council, but also the acts of the executive and legislative branches, in terms of decisions for selection, appointment or proposal for a public function.

The Court underlined that, in essence, in absence of the fulfillment of the criteria established through the case-law of European Court of Human Rights and of the Court, the main allegation on the basis of which the applicants would be exempted from the obligation to exhaust legal remedies is related to “the specificity of the selection procedure for the position of the Chief State Prosecutor”. However, the Court emphasized that the reference to the case KI 99/14 and KI 100/14 does not imply an acquired right to exemption from the constitutional obligation to exhaust legal remedies, because the case-law of the European Court of Human Rights and of the Court clearly define that the assessment for the exemption from the obligation to exhaust legal remedies, is made on a case-by-case basis, based on the abovementioned criteria regarding the efficiency of the legal remedy and based on the principle of the burden of proof.

In this context, and in the function of consolidating its case-law and based on the principle of legal certainty, this Court, based on the clear formulation of paragraph 7 of Article 113 of the Constitution, which requires exhaustion of the legal remedies for all individuals without exception, underlined that it deems it necessary to clarify that the nature or importance of a public function held or aimed cannot serve as a sole and isolated argument, on the basis of which one can be exempted from the obligation to exhaust legal remedies prescribed by the law. The Court further clarified that such an approach is neither supported by the case-law of the European Court of Human Rights nor by the Opinions of the Venice Commission. On the contrary, it would result that the legal remedies provided through the laws adopted by the Assembly of the Republic would be effective or not, depending on the functions held or aimed to be held by the individuals rather than on the fulfillment or not of the criteria determined through the case-law of the European Court of Human Rights with respect to the efficiency of a legal remedy. Such an approach would result in an unequal treatment of individuals who are entitled to address the Court through individual referrals, as stipulated by paragraph 7 of Article 113 of the Constitution.