Constitutional Court

KI122/20, Applicant: Rijad Jusufi, Request for constitutional review of Administrative Instruction No. 01/2016 on implementation of Law No. 05/L-028 on Personal Income Tax 

KI122/20, Resolution on Inadmissibility, of 20 July 2021, published on 05 February 2021

Key words: Individual referral, inadmissible referral, unauthorized party, actio popularis

Applicant Rijad Jusufi from Dumnica village, Municipality of Podujeva, requested interpretation of Administrative Instruction No. 01/2016 on implementation of Law No. 05/L-028 on Personal Income Tax, of 15 March 2016.

The Applicant requested from the Court clarification whether (i) the Administrative Instruction obliges parties, the lender and the borrower, to enter into a contract against their will, and to set interest, when they have neither given nor received interest; and (ii) from which date the Tax Administration of Kosovo (hereinafter: the TAK) has the right to implement this Administrative Instruction. He addressed the Court with the following request: “We want that Article 19, paragraph 1.1.3 and 1.2 of Administrative Instruction No. 01/2016, is it in accordance with the jurisdiction of Kosovo, and from which date does Administrative Instruction No. 01/2016 apply and do they have the right to apply it retroactively.”

With regard to the Applicant’s request for constitutional review of Article 19 of the Administrative Instruction, the Court emphasizes its consistent position that natural or legal persons are not authorized parties to seek an abstract assessment of the compatibility of the legislation with the Constitution, or requests of an actio popularis nature. Thus, in its case law, the Court has consistently emphasized that individuals cannot challenge in abstracto normative acts of a general nature.

The Court reiterates the fact that the Constitution does not provide for the right of individuals to submit a request for abstract constitutional review, namely to challenge directly in the Constitutional Court the general normative acts of public authorities. The Constitution provides protection for individuals with respect to the actions or failure to act of public authorities, only within the scope provided by Articles 113.1 and 113.7 of the Constitution. These constitutional provisions require Applicants to prove that: (1) they are authorized parties; (2) they are directly affected by a concrete act or failure to act by public authorities; and (3) that they have exhausted all legal remedies provided by law. (See, Court cases: KI21/19, Applicant Pjetër Boçi, Resolution on Inadmissibility of 27 May 2019 – where the interpretation of the relevant legislation regarding the definition of “official position” was requested, paragraphs 21-28 and references cited therein; KI92/12 Applicant Sali Hajdari, Resolution on Inadmissibility of 6 December 2012 – requesting the constitutional review of the Law on Pensions; KI62/12 Applicant Liridon Aliu; Resolution on Inadmissibility of 20 September 2012  – requesting interpretation of the Constitution; KI40/11 Applicant Zef Prenaj, Resolution on Inadmissibility of 23 September 2011 – requesting the constitutional review of the Administrative Instruction No. 11/2010 for the payment of the basic pension issued by MLSW in October 2010).

Consequently, the Court notes that it cannot answer the questions and doubts of the applicability of the Administrative Instruction, which the Applicant has submitted, in abstracto, through his Referral. In the light of the foregoing, the Referral of the Applicant is to be declared inadmissible because it was not filed by an authorized party, as established in paragraphs 1 and 7 of Article 113 of the Constitution, Article 47 of the Law, and Rule 39 (1) (a) of the Rules of Procedure of the Constitutional Court.