Constitutional Court

KI189/19, Applicant: Alban Miftaraj, Constitutional review of Judgment [ARJ-UZPV. No. 85/2019] of the Supreme Court of 26 June 2019

KI189/19 Resolution on inadmissibility, of 10 November 2020, published on 17 December 2020

Keywords: individual referral, administrative procedure, right to a fair trial, right to work, non-exhaustion of legal remedies, manifestly ill-founded referral, inadmissible referral

The Applicant in the Constitutional Court challenged the constitutionality of Judgment ARJ-UZPV. No. 85/2019 of the Supreme Court of 26 June 2019, alleging a violation of his rights guaranteed by Articles 31 [Right to Fair and Impartial Trial], 49 [Right to Work and Exercise Profession] and 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution of the Republic of Kosovo, in conjunction with Article 6 [Right to a fair trial] of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court, regarding the Applicant’s allegations of violation of the right to a fair trial, namely the principle of “impartiality”, assessed that the Applicant has not exhausted all effective legal remedies in the substantive meaning. With regard to other allegations of violation of the principles “reformatio in peius” and “res judicata”, the Court found that in these parts the Referral should have been declared manifestly ill-founded on constitutional basis, because the Applicant did not sufficiently substantiate these two specific allegations. The Applicant, among other things, before the Court raised an allegation of violation of the right to property, however, this allegation in the view of the Court, turned out to be manifestly ill-founded on constitutional basis, because the Applicant did not have a claimed right and acquired by a final court decision. The other allegations related to Articles 49 and 55 of the Constitution were only alleged by the Applicant in his Referral, without further arguing how these specific Articles were violated. Therefore, the Court in accordance with its case law, declares the Applicant’s Referral as manifestly ill-founded and consequently inadmissible.

In sum, with regard to the allegations of violation of the rights guaranteed by the Constitution and the ECHR, the Court found that the Referral: i. in relation to the allegation of violation of Article 31 of the Constitution, namely the allegation of “impartiality in the trial” must be declared inadmissible in accordance with Article 113.7 of the Constitution, Article 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure, due to non-exhaustion of legal remedies in the substantive meaning, ii. with regard to the allegation of a violation of the “reformatio in peius” principle, it must be declared manifestly ill-founded, in accordance with Rule 39 (2) of the Rules of Procedure, because the Applicant has not sufficiently substantiated his allegation of a violation of this principle; iii. in relation to the allegation of a violation of the principle of the adjudicated case (res judicata), it must be declared manifestly ill-founded, pursuant to Rule 39 (2) of the Rules of Procedure, as it has not been confirmed that the courts intervened and reopened “the adjudicated case”; iv. with regard to the alleged violation of Article 1 of Protocol No. 1 [Protection of Property] of the ECHR, must be declared manifestly ill-founded, in accordance with Rule 39 (2) of the Rules of Procedure; and v. with respect to the allegation of a violation of Articles 49 and 54 of the Constitution, is to be declared manifestly ill-founded, in accordance with Rule 39 (2) of the Rules of Procedure.