Constitutional Court

KI214/21, Applicant: Avni Kastrati, constitutional review of Judgment [ARJ. no. 84/2021] of 22 September 2021, of the Supreme Court of the Republic of Kosovo

KI214/21, Judgment of 7 December 2022, published on 13 January 2023

Keywords: individual referral, constitutional violation, access to justice

The circumstances of the present case are related to relieve of duty the Applicant from the position of Ambassador of the Republic of Kosovo to the Republic of Slovenia by a decree of the President of the Republic of Kosovo. Against the President’s decree, the Applicant filed a lawsuit with the Basic Court in Prishtina. The latter rejected the lawsuit as unlawful, among other things, on the grounds that according to the provisions of the Law on Administrative Conflicts, a decree of the President cannot be subject to assessment in the administrative conflict procedure, but the latter can only be subject to the procedure of the constitutional review by the Constitutional Court. The decision of the Basic Court was also upheld by the Court of Appeals and the Supreme Court.

The Applicant before the Constitutional Court alleged that, by not assessing the legality of the challenged decree, the regular courts violated his fundamental rights and freedoms guaranteed by articles: 7 [Values], 65 [Competencies of the Assembly], 84 [Competencies of the President], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 45 [Freedom of Election and Participation], 54 [Judicial Protection of Rights] and 55 [Limitations of Fundamental Rights and Freedoms] of the Constitution. This is because, among other things, the Applicant was denied the right to use effective legal remedies in the regular courts to protect his subjective rights.

In addressing the Applicant’s allegations, the Court initially assessed that the essence of the Applicant’s allegations was related to the right to “access to justice”, as an integral part of a fair and impartial trial guaranteed by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights. In this regard, the Court initially elaborated (i) the general principles of its case law and that of the European Court of Human Rights, regarding the principle of “access to justice”; (ii) the jurisdiction of the regular and its judiciary, in dealing with concrete individual acts within the meaning of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, in which case, among other things, emphasized that, there is a clear position that pertains to the functions of the regular and constitutional judiciary, recalling that the former takes care of preserving the legal supremacy of the law, namely the compatibility of sub-legal acts with the law, while the second, namely the Constitutional Court, takes care of preserving the legal supremacy of the Constitution through checking the constitutionality of laws and other acts with the Constitution; and (iii) the nature/character of legal acts, with special emphasis on presidential decrees of an individual nature through which the rights and freedoms of certain individuals can be affected, circumstances in which, based on the Constitution of the Republic of Kosovo, the applicable legislation but also the case law of the European Court of Human Rights and that of the majority of member states of the Venice Commission Forum, the affected parties have the right to use the legal remedies in regular courts, unless such a possibility is limited specifically by law and such restriction is justifiable.

The Court, applying these principles in the circumstances of the present case, established that the challenged decree of the President for the release of the Applicant from his position, contained the “civil rights” of the Applicant and “dispute” or “disagreement” within the meaning of the right to fair and impartial trial guaranteed by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights, and consequently, and also based on the constitutional provisions and the applicable legislation, it belongs to the group of decrees of an individual nature which can be challenged before the regular courts. Therefore, the Court found that the dismissal of the Applicant’s lawsuit as inadmissible denied him the right to “access to justice” in violation of the rights guaranteed by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights.

Therefore, and based on the clarifications given in the published Judgment, the Court concluded that Judgment [ARJ. no. 84/2021] of 22 September 2021 of the Supreme Court, Decision [AA. no. 612/2021] of 13 July 2021 of the Court of Appeals and the Decision [A. no. 1297/2021] of 1 June 2021 of the Basic Court in Prishtina, are not compatible with Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights.