- The Constitutional Court
KI125/20, Applicant: Shaban Shala, Constitutional review of Judgment AA- no. 6/2020 of the Supreme Court, of 6 April 2020
KI125/20, Resolution on inadmissibility, of 20 May 2021, published on 4 June 2021
Keywords: individual referral, disciplinary proceedings, right to a fair trial, judicial protection of rights, manifestly ill-founded referral claim, inadmissible referral
In his Referral before the Constitutional Court, the Applicant challenged the Decision AC-II-15-0042 of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters, of 21 July 2020, alleging a violation of the rights of guaranteed by Articles: 3 [Equality before the Law], 7 [Values], 24 [Equality before the Law], 31 [Right to Fair and Impartial Trial], 33 [Principle of Legality and Proportionality in Criminal Cases] of the Constitution of the Republic of Kosovo, as well as Articles 6 [Right to a fair trial] and 14 [Prohibition of discrimination] of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the ECHR).
As regards the allegation for violation of the right to a fair trial, the Court considered that the Supreme Court, as a final instance in this case, has respected all the requirements of Article 31 of the Constitution and Article 6.1 of the ECHR, by giving the Applicant the opportunity to submit his objections, regarding any reasoning given by the KJC in Decision no. 51/2020, of 21 February 2020, where a hearing on the case was previously held. Moreover, all the arguments that were relevant to the resolution of the Applicant’s case have been duly heard and examined by the Supreme Court, hence in this case we are not dealing with an unreasoned or manifestly arbitrary decision. Therefore, in relation to this allegation, namely the right to a reasoned decision, the Court, in accordance with its case law, declared the Applicant’s Referral to be manifestly ill-founded. With respect to the other allegations, the Court considers that the Applicant merely mentions the respective articles, but does not further elaborate on how and why these relevant Articles of the Constitution and the ECHR have been violated. The Court recalls that it has consistently reiterated that the mere reference to the articles of the Constitution and the ECHR is not sufficient to build an arguable claim for a constitutional violation. When alleging such violations of the Constitution, the applicants must provide reasoned allegations and compelling arguments. Therefore, the Court declared them to be manifestly ill-founded and inadmissible.
In sum, on the basis of standards established in its case law and the case law of the ECtHR, the Court finds that the Applicant has in no way proved and sufficiently substantiated his allegations for a violation of the right to a reasoned decision, guaranteed by Article 31 of the Constitution and paragraph 1 of Article 6 of the ECHR. In this sense the Court concluded that the Referral in its entirety must be declared inadmissible as manifestly ill-founded, since the Applicant’s allegations qualify as claims that pertain to the category of (i) “fourth instance” claims and category (iii) “unsubstantiated or unreasoned” claims. Consequently, in accordance with paragraph (2) of Rule 39 of the Rules of Procedure, they must be declared manifestly ill-founded and inadmissible.
KI – Individual Referral
Legal remedies are not exhausted, Referral is manifestly ill-founded