Constitutional Court

KI108/18 – Constitutional review of Decision No. 64/04 of the Civil Registration Agency of 13 June 2018

KI108/18, Applicant: Blerta Morina

Resolution on Inadmissibility of 5 September 2019, published on 1 October 2019

Keywords: Individual referral, premature referral, right for a private life, rights of transgender persons

 The Referral was submitted by Blerta Morina. Without prejudice to the merits of the case before the regular courts, the Constitutional Court, in accordance with the case-law of the European Court of Human Rights pertaining to transgender persons, has referred to the Applicant in the male gender, thereby respecting his self-identification with that gender.

The subject matter was the constitutional review of the Decision of the Civil Registration Agency which rejected the Applicant’s request for legal change of the name from “Blerta” to “Blert” and legal change of the gender marker from female gender “F” to male gender “M”. The Applicant alleged that the Civil Registration Agency violated his fundamental rights and freedoms guaranteed by Articles 23 [Human Dignity], 24 [Equality before the Law] and 36 [Right to Privacy] of the Constitution in conjunction with Article 8 (Right to respect for private and family life) of the European Convention on Human Rights. In addition, the Applicant’s main procedural requirement before the Constitutional Court was that he be exempted from the obligation to exhaust the legal remedy provided by law, namely the “claim for administrative conflict”, in the circumstances of his case.

In assessing the admissibility of the Referral, the Court initially articulated (i) the general principles of the European Court of Human Rights and of the Constitutional Court with regard to the exhaustion of legal remedies (see paragraphs 148-159 of the Resolution); and, subsequently, (ii) applied them in the circumstances of the present case (see paragraphs 160-191 of the Resolution). The application of such principles as well as the application of the tests established by the European Court of Human Rights and internalized by the Constitutional Court, led the latter to the decision that the Applicant’s request to be exempted from the obligation to exhaust the legal remedy provided by law, must be rejected and, consequently, that the Referral KI108/18 must be declared inadmissible as premature.

In examining the Applicant’s allegations concerning the lack of an effective legal remedy in the circumstances of his case and taking into account the Applicant’s “special circumstances”, Constitutional Court specifically considered whether the claim for administrative conflict is effective and sufficiently certain not only in theory but also in practice. As elaborated in this Resolution on Admissibility, in determining the effectiveness and sufficient certainty of a legal remedy in practice, based on the case-law of the European Court of Human Rights, the relevant case-law in respect of the circumstances of the case under consideration is of a significant importance. In this regard, the Constitutional Court took into account that the same Basic Court before which remains pending for review the Applicant’s claim for administrative conflict, already has relevant case-law, through which, in similar circumstances, approved the request of another transgender person for the legal change of name and gender marker from “F” to “M”. The decision of the Basic Court was also confirmed by the Court of Appeals. The regular courts invoked the Constitution, the European Convention on Human Rights and the case-law of the European Court of Human Rights and ordered the relevant authorities to make the respective corrections in the civil registration books.

In the light of these circumstances, the Court found that the claim for administrative conflict is “effective” and “sufficiently certain in theory and in practice”, and that, based on the case-law of the regular courts, this legal remedy “is capable of providing redress” regarding the Applicant’s allegations for violation of his fundamental rights and freedoms guaranteed by the Constitution, as well as to “provide a reasonable prospect of success”.

In such cases where the effectiveness of a legal remedy, beyond theory, is also confirmed in practice through the relevant case-law, the Constitutional Court cannot, based on the principle of subsidiarity, deprive the regular courts of their constitutional competence to decide on the Applicants’ allegations for potential violations of articles of the Constitution and of the European Convention on Human Rights. It would be in full contradiction with the subsidiary spirit of the constitutional control mechanism if the Constitutional Court were to declare a legal remedy ineffective, when in fact the latter has proven its effectiveness in practice. Respecting the principle of subsidiarity requires precisely allowing the necessary path and space to the lower instance courts to carry out their duty of direct application of the Constitution and the European Convention on Human Rights. If they fail in this task, the Constitutional Court may be set in motion by the respective parties in accordance with its jurisdiction.

At the end of its Resolution on Admissibility, the Court also stated that declaring the Referral KI108/18 as premature in itself means that the Applicant has a guaranteed opportunity by the Constitution and the relevant provisions of the Law and the Rules of Procedure of the Court, to address to it again with a request for constitutional review of the decisions of public authorities, be it for their actions or omissions to act, which he may claim to be in breach of his rights or fundamental freedoms guaranteed by the Constitution, European Convention on Rights Human Rights or other international instruments guaranteed by the Constitution.

In conclusion, the Court held that the Applicant did not meet the admissibility requirement of exhaustion of legal remedies established in paragraph 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law and item (b) of paragraph (1) of Rule 39 of the Rules of Procedure.

Finally, the Court also addressed the Applicant’s request for compensation of non-pecuniary damage in the amount of € 5,000.00 due to violation of his fundamental rights and freedoms guaranteed by the Constitution and the European Convention on Human Rights. This particular request of the Applicant was rejected by the Court on the grounds that Referral KI108/18 was declared inadmissible on procedural basis as well as the fact that the Court does not have an authorization to award “just satisfaction” or “compensation” as the European Court of Human Rights has such a right in accordance with Article 41 of the European Convention on Human Rights and Rule 60 of its Rules of Procedure.