Constitutional Court

Case No. KI09/21, Applicant: Sadat Lekiqi, Constitutional Review of the Notification of the Ad-hoc Parliamentary Committee of the Assembly of the Republic of Kosovo for the Selection of Candidates for Members of the Independent Oversight Board for the Civil Service of Kosovo, of 15 September 2020 

Keywords: individual referral, Independent Oversight Board for the Civil Service of Kosovo, exhaustion of legal remedies 

Based on the case file it results that on 26 May 2020, the Assembly of Kosovo announced a vacancy for the selection of 7 (seven) members of the Independent Oversight Board for the Civil Service of Kosovo (IOBCSK). The Applicant had applied for a member of the IOBCSK based on the aforementioned vacancy, nevertheless, he was notified by the relevant Parliamentary Committee of the Assembly that he has not been selected to continue with the interview process, because, among other things, he does not meet the criteria of the respective vacancy, respectively does not have ten (10) years of working experience, as prescribed under sub-paragraph 3 of paragraph 1 of Article 9 of the Law on the IOBCSK.

The Applicant challenges this decision before the Court, alleging that the same was issued in violation of his fundamental rights and freedoms guaranteed by Articles 21 [General Principles], 22 [Direct Applicability of International Agreements and Instruments], 24 [Equality Before the Law] and 49 [Right to Work and Exercise Profession] of the Constitution and Articles 13 (Right to an effective remedy), 14 (Prohibition of discrimination) and 17 (Prohibition of abuse of rights) of the European Convention on Human Rights.

In assessing the Applicant’s allegations, the Court initially found that the Applicant has submitted the Referral in the capacity of authorized party, challenging an act of public authority, namely the Notification of the Parliamentary Committee, of 15 September 2020. However, pursuant to paragraph 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law and point (b) of paragraph (1) of Rule 39 (Admissibility Criteria) of the Rules of Procedure, the Court found that the Applicant does not meet the criteria of exhaustion of legal remedies prescribed by law. This is because beyond the possibility of contesting the procedures concerning the selection of members of the IOBCSK within the Assembly, the applicable laws also refer to other legal remedies determined by (i) Law No. 03/L-202 on Administrative Conflicts; and (ii) Law No. 05/L-021 on Protection from Discrimination, whilst the Applicant did not exhaust any legal remedies related to his case before addressing the Referral to the Court, in addition he also did not prove that (i) legal remedies set out in the abovementioned laws which he has not exhausted are not “sufficiently certain not only in theory but also in practice” because they cannot “provide solutions concerning the Applicant’s allegations” and  “provide a reasonable opportunity for success”; (ii) the same are not “available, accessible and effective”; (iii) “has done all that can reasonably be expected from them to exhaust legal remedies”; and (iv) his allegations of ineffectiveness of legal remedies are not based on “simple suspicions” and which are not sufficient grounds for releasing an Applicant of the obligation to exhaust legal remedies, based on the case law of the Court and of the European Court of Human Rights.

Consequently, the Court found that the Applicant’s Referral does not meet the admissibility criteria since he has not exhausted the legal remedies as defined in paragraph 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law and point (b) of paragraph (1) of Rule 39 of the Rules of Procedure, and as such, the Referral must be declared inadmissible.

The Court also, in accordance with paragraph 1 of Article 27 (Interim Measures) of the Law and point (a) of paragraph (4) of Rule 57 (Decision on Interim Measures) of the Rules of Procedure, decided that the Applicant’s request for an interim measure must be rejected, because the same cannot be subject to review, after the Referral is declared inadmissible.