Constitutional Court

KI149/18, KI150/18, KI151/18, KI152/18, KI153/18 and KI154/18, Applicants: Xhavit Aliu and 5 others, Constitutional review of 6 decisions of the Supreme Court of the Republic of Kosovo, issued between 11 April and 9 August 2018

Xhavit Aliu (KI149/18), Fadil Bekteshi (KI150/18), Vesel Rukolli (KI151/18), Brahim Kaqkini (KI152/18), Malush Shaqiri (KI153/18) and Florije Kastrati (KI154/18), Resolutions on Inadmissibility, adopted on 19 July 2019, published on 20 August 2019

Key words: Individual Requests, “Raising the Voice”, war damages, manifestly ill-founded referral

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

The regular courts declared to have no jurisdiction to decide on this matter 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 the domestic courts have no jurisdiction to decide, but in this legal matter the court in the territory where the seat of the Assembly of Serbia is located has jurisdiction.

The Applicants before the Constitutional Court alleged that their rights guaranteed by the Constitution, namely Articles 21, 22, 53 and 54, have been violated. The Applicants had three categories of main allegations: (i) implementation of the “ratione loci” principle; (ii) the obligation to implement international human rights standards, and (iii) their right to judicial protection of rights and the right of access to justice.

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

Consequently, the Constitutional Court found that the Referrals are manifestly ill-founded upon constitutional grounds and therefore are to be declared inadmissible in accordance with Rule 39 (2) of the Rules of Procedure, whereas:

• In Case KI149/19, it found that it was filed out of time in terms of the legal deadline provided under Article 49 and Rule 39 (1) (c) of the Rules of Procedure.
• In Case KI150/19, it found that it was filed by an unauthorized party and not in compliance with Article 47 and Rule 39 (1) (a) of the Rules of Procedure.