Constitutional Court

KI43/20, Applicant: Fitore Sadikaj, Request for constitutional review of Decision KPK No. 697/2019 of the Kosovo Prosecutorial Council, of 12 November 2019 and Decision KPK No. 796/2019 the Kosovo Prosecutorial Council, of 23 December 2019

KI43/20, resolution on inadmissibility of 29 July  2020, published on 31 August 2020

Keywords: individual referral, right to legal remedy, resolution on inadmissibility

Based on the case file, it follows that the Applicant applied for the position of Chief State Prosecutor of the Municipal Prosecution, but as a candidate she did not gain a sufficient number of points from the Evaluation Panel, and was disqualified in the first round of interviews.

In this regard, the Applicant submitted the Referral to the Constitutional Court in which she requested the constitutional review of the decision of the Kosovo Prosecutorial Council, considering that she should not continue with the procedure of exhaustion of legal remedies because her case is similar to cases already dealt with by the Constitutional Court in its earlier case law, exempting some applicants of the obligation to exhaust legal remedies.

The Applicant considered that the decisions of the Prosecutorial Council violated her rights and freedoms guaranteed by Article 24 [Equality Before the Law], Article 31 [Right to Fair and Impartial Trial], Article 32 [Right to Legal Remedies], Article 54 [Judicial Protection of Rights] and Article 110, paragraph 3 [Kosovo Prosecutorial Council] of the Constitution of the Republic of Kosovo, as well as Article 6 (Right to a fair trial), Article 13 (Right to an effective remedy) and Article 14 (Prohibition of discrimination) of the European Convention on Human Rights.

During the analysis of the Applicant’s allegations as well as the case file, the Court found that the Applicant’s case differs from the cases referred to by the Applicant, first according to the position for which the Applicant applied, “…the specificity of the election procedure for the position of Chief State Prosecutor and the necessity this to be done in a timely fashion” (see paragraph 50 of Judgment in Case KI99/14 and KI100/14, Applicants Shyqyri Syla and Laura Pula, of 3 July 2014).

The Court therefore found that the case-law invoked by the Applicant was inadequate and could not be applied in the present case for the abovementioned reason.

The Court concluded that the Applicant in this case is an individual who has regular legal remedies available before the regular courts and who belongs to the ranks of authorized persons under Article 113.7 of the Constitution and that the requirements of Article 113.7 of the Constitution, Article 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure apply to her (see the case of Court KI130/16, Resolution on Inadmissibility, Applicant, Hamdi Ibrahimi against Decision of the KJC, of 7 July 2017, paragraph 29-33).

Therefore, the Court declared the Applicant’s Referral inadmissible, because she has not exhausted regular legal remedies in accordance with Article 113.7 of the Constitution, Articles 20 and 47 of the Law and in accordance with Rule 39 (1) (b) of the Rules of Procedure.