Constitutional Court

KI123/22, Applicant: Getoar Mjeku, constitutional review of Judgment [ARJ. no. 36/2022] of the Supreme Court of 13 June 2022

KI123/22, Resolution on Inadmissibility of 13 February 2024, published on 11 April 2024

Keywords: individual referral, right to fair and impartial trial, bar examination, inadmissible referral   

From the case file, it turns out that the essence of this case is related to the request of the Applicant to undergo the bar exam at the Ministry of Justice. The Commission of the Ministry of Justice for the evaluation of the requests of the candidates for the bar exam, rejected the request of the Applicant for permission to take the bar examination. In the meantime, the Applicant submitted a complaint to the Ministry of Justice, which rejected the Applicant’s complaint against the Commission for evaluating the requirements of candidates for the bar exam as ungrounded. The Applicant submitted a claim to the Basic Court. The Basic Court approved the Applicant’s statement of claim and annulled the decision of the Ministry of Justice. The Ministry of Justice submitted an appeal to the Court of Appeals. The Court of Appeals approved the appeal of the Ministry of Justice as grounded, and the case is remanded to the Basic Court for retrial and reconsideration. The Basic Court in the retrial approved the Applicant’s claim as grounded and annulled the decision of the Ministry of Justice. The Ministry of Justice again submitted an appeal to the Court of Appeals, which approved the appeal of the respondent Ministry of Justice as grounded, modified the Judgment of the Basic Court and rejected the Applicant’s claim. The Applicant submitted a request for an extraordinary review of the court decision, alleging a violation of substantive and procedural law. The Supreme Court rejected as ungrounded the request for extraordinary review of the court decision filed by the Applicant against the Judgment of the Court of Appeals.

In the proceedings before the Constitutional Court, the Applicant basically raised the allegations that the Ministry of Justice, the Court of Appeals and the Supreme Court by denying him the right to undergo the bar examination have committed: (i) violation of Article 31 of the Constitution and Article 6 (1) of the ECHR on the grounds of insufficient reasoning of their decisions; (ii) violation of Article 24 of the Constitution and Article 14 of the ECHR and Article 1 of Protocol no. 12 of the ECHR on the grounds of objectively unjustified discrimination against candidates with school qualifications at the Faculty of Law of the Republic; and, (iii) as a result of insufficient reasoning and objectively unjustified discrimination, the Applicant also claims that his right to work and exercise profession from Article 49 of the Constitution has been violated , because he is not allowed to enter the bar examination.

In assessing all the aforementioned allegations of the Applicant, the Court found that the Court of Appeals and the Supreme Court: (i) have provided a comprehensive reasoning of all the central issues of the Applicant’s case, which implies that the Applicant had the opportunity to present arguments against the respondent, the Ministry of Justice; (ii) the Court of Appeals and the Supreme Court have determined the legal basis by providing sufficient and logical explanations for the legal requirements that must be met in order to have the right to undergo the bar exam; (iii) the Court of Appeals and the Supreme Court have explained that the Applicant has not submitted the evidence – contrary to what he claimed – that proves that he meets the requirements for taking the bar exam as defined by the relevant provisions of the Law on LBE; and, (iv) from the answer of MEST of 2 March 2023, it results that the Applicant has not proven that the program of the country from which he received his diploma has reached the degree of similarity of at least 70% so that it is equivalent to the degree of “graduated lawyer” awarded by institutions of higher education in the Republic of Kosovo.

Therefore and based on the clarifications given in the published Resolution, the Court concluded that the Applicant’s claims for violation of the right to fair and impartial trial guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 (Right to a fair trial) of the European Convention on Human Rights are claims that qualify as “unsubstantiated or unsupported” claims an as such, these claims of the Applicant are manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 34 of the Rules of Procedure.