Constitutional Court

KI67/19, Applicant: Hajrije Rina Zhitija Ajeti, Request for constitutional review of Judgment C. No. 571/18 of the Basic Court in Ferizaj of 12 November 2018

KI67/19, Resolution on Inadmissibility, adopted on 5 September 2019, published on 3 October 2019

Keywords: individual referral, premature referral, non-exhaustion of legal remedies, inadmissible referral, Article 31 [Right to Fair and Impartial Trial] in conjunction with Article 6 (Right to a fair trial) of the ECHR

The Applicant alleges that the Basic Court in Ferizaj by Judgment [C. No. 571/18] of 12 November 2018 dissolved the marriage between her and her husband, without her knowledge.

The Applicant therefore challenges the aforementioned Judgment before the Court, alleging in substance a violation of the principle of equality of arms and non-participation in the court hearing in violation of her fundamental rights and freedoms guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR. Along with challenging this Judgment before the Court, the Applicant also submitted a proposal for reopening the proceedings before the Court of Appeals. This procedure has not yet been completed before the Court of Appeals and is registered with the number [AC. No. 1846/19].

Having regard to the fact that the proceedings before the Court of Appeals are still pending, the Court based on the principle of subsidiarity embodied in paragraph 7 of Article 113 of the Constitution and the case law of the Court and of the ECtHR, declared the Applicant’s Referral  inadmissible as premature, as established in paragraph 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law and further specified in item (b) of paragraph (1) of Rule 39 of the Rules of Procedure.

The Court has already established in its case law that if the proceedings are pending before the regular courts, then the Referral of the Applicants  is considered premature, thereby providing the regular courts the opportunity to prevent alleged violations of the fundamental rights and freedoms guaranteed by the Constitution and, if any, to remedy such a violation.