Constitutional Court

KI86/19, KI87/19, KI88/19, KI89/19, KI90/19 and KI 91/19, Applicants: Ibrahim Zenuni and 5 others, Constitutional review of 6 decisions of the Supreme Court of the Republic of Kosovo, rendered between 7 February and 4 April 2019

Ibrahim Zenuni (KI86/19), Ibrahim Beka (KI87/19), Rushit Vojvoda (KI88/19), Fazli Aliu (KI89/19), Sabedin Deliu (KI90/19) and Mehdi Ferizi (KI91/19), Resolution on Inadmissibility, rendered on 16 January 2020, published on 20 February 2020

Keywords: Individual referral, “Ngritja e Zërit”, the damages of war, manifestly ill-founded referral

The Applicants filed a claim 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 were declared incompetent 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 disputes the domestic courts are not competent to decide, but the competent in this legal matter is the court in which territory the seat of the Assembly of Serbia is located.

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

The Constitutional Court, after examining the Applicants’ allegations, 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 and that they were afforded the opportunity at all stages of the proceedings to present legal arguments and interpretations which they consider relevant to their cases. The Constitutional Court also recalled the ECtHR case law in some cases where the procedural barriers that the principle of sovereign immunity of states imposes in relation to judicial proceedings that may be instituted against one state in the domestic courts of another state, have been highlighted. The Court also considered it important to emphasize the fact that the regular courts of Kosovo did not adjudicate the Applicants’ right to seek compensation for damages, but only as regards the territorial competence of the Kosovo courts to institute proceedings against another state.

Therefore, the Constitutional Court held that the Referrals are manifestly ill-founded on constitutional basis and are to be declared inadmissible in accordance with Rule 39 (2) of the Rules of Procedure.