Constitutional Court

KI96/18, KI97/18, KI98/18, KI99/18, KI100/18, KI101/18, KI102/18, KI103/18, KI104/18, KI105/18, KI106/18, KI107/18, KI116/18, KI117/18, KI119/18 and KI125/18, Applicants: Fehmi Hoti and 15 others, Constitutional review of 16 decisions of the Supreme Court of Kosovo rendered between 26 March and 12 April 2018

KI96/18, KI97/18, KI98/18, KI99/18, KI100/18, KI101/18, KI102/18, KI103/18, KI104/18, KI105/18, KI106/18, KI107/18, KI116/18, KI117/18, KI119/18 and KI125/18 Resolution published on 27.02.2019

Keywords: Individual referral, manifestly ill-founded referral

The Applicants filed a claim with the Basic Court in Mitrovica – Branch in Skenderaj  against the Government of the Republic of Serbia, for compensation of material and non -material damage that was caused during the war.

The regular courts were declared incompetent to decide on this matter and, finally, referring to the relevant provisions of the Law on Contested Procedure, the Supreme Court reasoned that in these cases the norms of international law apply, and the domestic courts are not competent to decide on these disputes but competent in this legal matter is the court in the territory of which is the seat of the Assembly of the Republic of Serbia.

The Applicants before the Constitutional Court alleged a violation of their rights established in the Constitution, namely Articles 21, 22, 53 and 54. The Applicants had three main categories of allegations: (i) the application of the principle “per loci” [ratione loci] (ii) the obligation to apply the international human rights standards and (iii) their right to judicial protection of rights and the right of access to justice.

The Constitutional Court, after considering the  Applicants’ allegations, reasoned that the findings of the regular courts were reached after a detailed examination of all the arguments and interpretations presented by the Applicants and they were given the opportunity at all stages of the proceedings to present the arguments and legal interpretations that they consider relevant to their cases. The Constitutional Court also recalled the case law of the ECtHR in several cases where the procedural barriers imposed by the principle of sovereign state immunity have been highlighted in relation to judicial proceedings that may be conducted against a state in the domestic courts of another state. The Court also considers that it important to emphasize the fact that the regular courts of Kosovo did not adjudicate on the Applicants’ right to seek compensation of damage, but only regarding the territorial jurisdiction of the Kosovo courts to conduct a procedure against another state.

Therefore, the Constitutional Court found that the referrals are manifestly ill-founded on constitutional basis and are to be declared inadmissible, whereas in one of the referrals (KI125/18) it found that it was submitted out of time.