Constitutional Court

KI47/17, Applicant Selvete Aliji, Request for constitutional review of  Decision AC. No. 2812/2016 of the Court of Appeals of Kosovo of 9 December 2016

KI47/17, Judgment, violation of Article 31 of the Constitution, of 21 November 2018, published on 28.12.2018

Keywords: individual referral, right to fair and impartial trial, equality of arms, constitutional violation

On 11 March 2016, according to the Applicant’s allegations, the latter went to the Civil Registry Office for an extract and from the extract she learned that her marital status has changed and that “in the central registry of civil status she is evidenced as divorced”. At the Central Registry Office of Civil Status in Prishtina, following a request for clarification, she received a copy of Judgment C. No. 280/2014, of 16 October 2015, stating that her marriage to her ex-spouse had been dissolved by judgment of the Basic Court in Prishtina.

As she did not have any knowledge about the judgment on marriage dissolution, she started a court proceeding for the repetition of the proceedings.

By Decision CN. No. 49/2016, of 13 June 2016, the individual judge rejected as inadmissible the Applicant’s request for repetition of the procedure. In the reasoning of this decision it is noted that Article 88 of the Family Law provides that “if the marriage has been dissolved or annulled by a final judgment”.

The Court of Appeals of Kosovo, on 9 December 2016, by Decision Ac. No. 2812/2016, rejected as ungrounded the Applicant’s appeal, and upheld Decision CN. No. 49/2016 of the same court, rendered in the first instance.

The Applicant, before the Constitutional Court, alleges a violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 of the ECHR [Right to a fair trial].

The Court, after considering the Referral, found that “the conduct of the court proceedings without the presence of the responding party (the Applicant) and rendering  the judgment on the dissolution of the marriage without any notice to the Applicant, violated the guarantees of Article 31 of the Constitution and of Article 6 of the ECHR, and in this case found that there has  been a violation of the right to fair and impartial trial, annulled all court decisions pertaining to the Applicant in this case and ordered the repeated proceedings, while at the same time requesting the respect for constitutional rights of the Applicant as stated in the Judgment.