Constitutional Court

KI164/20, Applicant: Rafet Haxhaj, Request for constitutional review of Decisions KGJK.no. 229/2020 and KGJK.no. 230/2020 of the Kosovo Judicial Council, of 29 September 2020 concerning the process of appointment of Judges of the Supreme Court of Kosovo

KI164/20, resolution on inadmissibility, of 20 January 2021, published on 15 February 2021

Keywords: individual referral, inadmissible referral, non-exhaustion of legal remedies, request for interim measures

The Applicant is Rafet Haxhaj from Prishtina, who requested the review of two decisions of the Kosovo Judicial Council (hereinafter: KJC), concerning the process of appointment of Judges of the Supreme Court of Kosovo (hereinafter: the Supreme Court), respectively: a) Decision KGJ.no.229/2020, of 29 September 2020; and, b) Decision KGJ.no.230/2020, of 29 September 2020.

The Applicant complains about his non-appointment to the position of a Supreme Court judge. He claims that the KJC during the selection process did not take into account the efficiency at work, the number of cases solved by him compared to the two recommended candidates. The Applicant states that efficiency at work is an essential element for gaining promotion in public functions, and that this requirement should be taken into account when a judge is promoted. In this regard he alleges that he was discriminated against during the evaluation by the Performance Evaluation Committee, the Panel for Assessing and Interviewing Candidates and the Review Committee. In this regard, the Applicant alleges that by failing to adequately implement the constitutional provisions the KJC has violated his right to a fair trial, the right to non-discrimination and the right to be equal with all other participants in the recruitment and promotion process, the right to legal remedies and the right to be present at the hearing in relation to the review of the complaint.

The Applicant requested from the Court the imposition of interim measures because as stated by him the implementation of the KJC decisions: “Decision KGJ.no.229/2020 and KGJK.no.230/2020 whereby two judges were promoted to the Supreme Court would in itself be a further violation of the guaranteed rights, and the very implementation of these unconstitutional decisions would deprive the functioning of the Supreme Court of Kosovo of legality and constitutionality. All rendered decisions where promoted judges would be a part of the decision-making could be declared unlawful, a fact which violates the principle of legal certainty of the citizens of the Republic of Kosovo.”

In this regard, the Court recalls that the rule on exhaustion of legal remedies under Article 113.7 of the Constitution, Article 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure obliges those who wish to submit their case to the Constitutional Court that they must first use the effective legal remedies that are available under the law against the challenged judgment or decision.

The Court noted that the Applicant, upon receiving the decisions of the KJC, has directly addressed the Constitutional Court,  requesting from the latter a constitutional review of the challenged decisions in relation to the alleged violations of the rights and freedoms  guaranteed by the Constitution, by basing his referral precisely upon the case law of the Constitutional Court, more exactly in cases KI99/14, KI100/14, in which the Court had exempted the applicants from the requirement of further exhaustion of legal remedies due to the specifics of their positions, respectively the position in which the applicants had applied.

The Court after having analysed the case, considers that the Applicant’s case differs and is not relevantly comparable to cases KI99/14 and KI100/14, on which occasion the Court has provided a detailed reasoning as to why the Applicants in those cases were exempted from the requirement to exhaust legal remedies. (See the relevant paragraphs regarding the exemption from the requirement to exhaust legal remedies in cases no. KI99/14 and KI100/14, Applicants Shyqyri Syla and Laura Pula, Judgment of 3 July 2014).

The Court notes that in the circumstances of the present case, in addition to the possibility of challenging the process of selection of judges in the Supreme Court within the KJC, the applicable laws also refer to other legal remedies stipulated in the Law No.03/L-202 on Administrative Conflicts (hereinafter: the LAC). The Court notes that Articles 13 and 14 of the LAC relating to the possibility of initiating an administrative conflict provide: (i) an administrative conflict can start only against the administrative act issued in the administrative procedure of the court of appeals; (ii) an administrative conflict can start also against the administrative act of the first instance, against which in the administrative procedure, complain is not allowed; and, (iii) an administrative conflict can also start when a competent body has not issued the relevant administrative act according to the request or complain of the party, under the conditions foreseen by this law (see, the case of the Constitutional Court no. KI147/18, Applicant Arbër Hadri, Resolution on Inadmissibility, of 4 September 2019, paragraphs 52 and 53).

The Court would like to emphasize that in cases KI145/15 and KI42/20 it has dealt with similar referrals and that it has issued a Resolution on Inadmissibility because the applicants had not exhausted all the legal remedies which were available to them under the law (see, the cases of the Court: KI145/15, Applicant Florent Muqaj, Resolution on Inadmissibility, of 5 November 2015, paragraphs 31-41 and KI42/20, Applicant Armend Hamiti, Resolution on Inadmissibility of 29 July 2020).

The Court finds that the Applicant has failed to provide reasons on why were the regular legal remedies before the regular courts for some reason not available to him or why were they ineffective in the particular circumstances of the case or that there have existed special circumstances due to which he would have to be exempted from the obligation to exhaust all legal remedies. On the basis of the foregoing, the Court concludes that the Applicant’s Referral must be declared inadmissible not all legal remedies were exhausted in accordance with Article 113.7 of the Constitution, Articles 20 and 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure. As it was concluded above, the Applicant has not exhausted the legal remedies provided for by Article 113.7 of the Constitution, Articles 20 and 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure; therefore also the Applicant’s request for interim measures was rejected.