Resolution

Constitutional review of 4 decisions of the Supreme Court of the Republic of Kosovo, rendered between 4 September 2019 and 18 January 2020

Case No. KI 20/20, KI 21/20, KI 22/20 dhe KI 23/20

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Summary

KI20/20, KI21/20, KI22/20 and KI23/20, Applicant: Hazir Hakolli and 3 othersConstitutional review of 4 decisions of the Supreme Court of the Republic of Kosovo, rendered between 4 September 2019 and 18 January 2020

KI20/20, KI21/20, KI22/20 and KI23/20, Resolution adopted on 22 July 2020, published on 24 August 2020

Keywords: Individual referral, joint referral, manifestly ill-founded referral, war damages

The Applicants filed a lawsuit with the Basic Court in Mitrovica- Branch in Skenderaj and the Basic Court in Peja, Branch in Istog, against the Government of the Republic of Serbia, for compensation of material and non-material damage caused to them during the war.

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

The Applicants before the Constitutional Court alleged that their rights provided by the Constitution, namely Articles 21, 22, 53 and 54 have been violated. The Applicants in their Referral, in essence, raised three categories of allegations, namely: (i) the application of the principle “per loci” [ratione loci]; (ii) the obligation for the application of international human rights standards; (iii) their right to judicial protection of their rights and the right of access to justice.

The Constitutional Court, after examining the allegations of the Applicants, reasoned that the conclusions of the regular courts were reached after a detailed examination of all the arguments and interpretations submitted by the Applicants and they were given the opportunity at all stages of procedure to present legal arguments and interpretations which they consider relevant to their cases. The Constitutional Court also recalled the case law of the ECtHR in some cases where the procedural barriers imposed by the principle of sovereign immunity of states were emphasized, in relation to court proceedings that may be conducted against one state in the domestic courts of another state. The Court also considered it important to emphasize the fact that the regular courts of Kosovo did not adjudicate on the right of the Applicants to seek compensation for damages, but only in relation to the territorial jurisdiction of the courts of Kosovo to conduct proceedings against another state.

Therefore, the Constitutional Court found that the Referrals are manifestly ill-founded on constitutional basis and are therefore inadmissible as established in Articles 47 and 48 of the Law and Rule 39 (2) of the Rules of Procedure.

Applicant:

Hazir Hakolli and 3 others

Type of Referral:

KI – Individual Referral

Type of act:

Resolution