Constitutional Court

The Applicant submitted Referral based on Article 113.7 of the Constitution, alleging that as a consequence of non-execution of the Decision no.123/02 of IOBCSK and of the rejection to decide on his matter on merits, all court instances, made violation of constitutional rights, guaranteed by: Article 22.1 [Universal Declaration of Human Rights], Article 31.1 [Right to Fair and Impartial Trial], Article 32.1 [Right to Legal Remedies] Article 54 [Judicial Protection of Rights], as well and Article 6 of European Convention on Human Rights.

The Court concluded in this case that the Applicant has fulfilled the procedural requirements required by Article 113.7 of the Constitution, Law and Rules of Procedure and considered the grounds of the Referral on the merits.

In this case, the Court referred to Article 54 of the Constitution, which highlights the fact that:”Everyone enjoys the right of judicial protection if any right guaranteed by this Constitution or by law has been violated or denied and has the right to an effective legal remedy if found that such right has been violated”. Given that the Applicant has requested both, from the authorities of MA of Kamenica and from regular courts to solve his issue, but despite his efforts, his actions were ignored and as a result, the latter did not exercise the right gained by an administrative decision, issued by IOBCSK.

The Court observed that in the case of the Applicant, the authorities of MA of Kamenica had no strong and sustainable reason to delay the proceeding regarding the implementation of the IOBCSK decision. Authorities of the MA of Kamenica, by not putting into action the mechanisms for enforcement of the abovementioned decision, failed to prove that they are ready to respect the decisions of an independent and competent body on deciding on this issue, even more when all court instances have addressed its solution to this body (IOBCSK ).

The Constitutional Court assessed that the Supreme Court by throwing responsibility for solving this issue on MA of Kamenica and IOBCSK, made that the Applicant was left without any concrete result by Supreme Court, because the Applicant did not exercise his right, due to the reason that he was not provided “the judicial protection of rights” as it is foreseen by the requirements of the Article 54 of the Constitution. Whereas, the transfer of responsibility from this instance and referring the case to IOBCSK cannot be considered as a justification for rejection of the review of the Applicant’s appeal, since this independent body issued a decision in accordance with administrative procedures, as it was later found by the Supreme Court itself with the Decision Rev. no.188/2009 dated 7 December 2011, but that this IOBCSK decision was never implemented by MA of Kamenica. It was clear that the Applicant was disabled to use effective legal remedies, therefore the Constitutional Court assesses that disregard of these important facts was in contradiction with the requirements of the Article 32 of the Constitution.

In order to make clearer this finding, the Constitutional Court refers to Article 13 of the European Convention on Human Rights, which determines that: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

ECHR emphasizes that Article 13 of the Convention guarantees availability of a legal remedy at a national level, to implement the essence of the rights and freedoms of the Convention in any kind of form that may be provided in their internal legal order. The effect of the Article 13 in this way requires providing of internal legal remedies to treat the content of a “substantiated appeal” according to the Convention and to make necessary compensation (see Kudla v. Poland [GCl, no. 30210/96, § 157, ECHR 2000 XI). the legal remedy of the Article 13 should be “effective” in practice and in the law (see, for instance, ilhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VJI). above § 158).

In conclusion, Constitutional Court found that non-implementation of the decisions no. 123/2008 of the IOBCSK and unreasonable delay of solving this issue by the authorities of MA of Kamenica, constituted violation of the Article 31 in conjunction with Article 32 of the Constitution as well as of Article 6 in conjunction with Article 13 of the Convention. The failure of the judicial authorities and impossibility of creation of circumstances for “effective legal remedies” and “judicial protection of rights” made that the courts issue decisions contrary to the requirements of the Article 32 in conjunction with Article 54 of the Constitution, Article 6 in conjunction with Article 13 of the Convention.