Constitutional Court

KI10/22, Applicant: Trade Union of the Institute of Forensic Medicine, Constitutional review of Judgment ARJ. no. 115/2021 of the Supreme Court of Kosovo of  18 November 2021

KI10/22, Judgment of 18 July 2021, published on 17 August 2022

Keywords: individual referral, control of constitutionality and control of legality, access to the Court

The circumstances of the present case, in essence, are related to the obligation of the regular courts to assess the legality of sub-legal acts, including those issued in administrative procedure, as established in the applicable laws in the context of the conflict and administrative procedure. More specifically, in the circumstances of the present case, the Applicant namely the Trade Union of the Institute of Forensic Medicine, challenged the legality of Regulation MD-No. 01/2020 on the Internal Organization and Systematization of the Institute of Forensic Medicine of the Ministry of Justice in relation to Law no. 05/L-060 on Forensic Medicine, claiming that the Regulation in question is contrary to Article 15 (Activity of the Institute) of this Law. The challenged Regulation was issued by the Ministry of Justice and was published in the Official Gazette of the Republic of Kosovo on 3 January 2021. This regulation was initially challenged within the Ministry of Justice by the relevant Institute. Considering that despite the requests of the Legal Office of the Prime Minister that the latter be modified to become in accordance with the applicable law, the relevant Ministry had not taken action, the Applicant filed a lawsuit for the initiation of the administrative conflict, requesting the Basic Court in Prishtina to assess the legality of the challenged Regulation. The Basic Court rejected the lawsuit of the Applicant, among other things, on the grounds that the challenged Regulation does not represent a final act in the administrative procedure against which the legality can be assessed in the judicial procedure, referring to Law no. 03/L-202 on Administrative Conflicts and Law no. 05/L-031 on the General Administrative Procedure. The decision of the Basic Court was also upheld by the Court of Appeals and the Supreme Court.

The Applicant challenges before the Court the findings of the Supreme Court, alleging, among other things, that as a result of the refusal to examine the merits of the compatibility of the challenged Regulation with the Law on Forensic Medicine, the regular courts failed to fulfill their duty of assessing  the legality of sub-legal acts, thus resulting in a violation of the constitutional obligations stipulated by Articles 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution. The Ombudsperson, through documents submitted first to the Supreme Court and then to the Constitutional Court, among other things, emphasized the importance of clarifying the courts with competence to assess the legality of sub-legal acts, also maintaining, in principle, the position that regular courts have competence to assess the legality of such acts based on the applicable laws in administrative procedure.

The Court dealt with the Applicant’s allegations from the point of view of “access to the court”,  which is enshrined in the guarantees established in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights. In this context, the Court first elaborated the general principles of its case law and of the European Court of Human Rights regarding the right of “access to court”, and then applied the latter to the circumstances of the present case. In addition, the Court also elaborated (i) issues related to the hierarchy of legal acts in the constitutional system of the Republic of Kosovo; as well as (ii) issues related to the obligations and competencies of control of the constitutionality and legality of legal acts. In this respect, the Court emphasized that it is the obligation of the regular courts to ensure the preservation of the legal supremacy of the laws, including the assessment of the compatibility of the sub-legal acts with the applicable law. The Court also clarified that such an obligation, in addition to originating from the Constitution of the Republic, is also clearly defined in the Law on Administrative Conflicts. In the assessment of the Court, the regular courts, rejecting the review of the legality of the sub-legal act, namely the challenged Regulation, in conjunction with Article 15 of the Law on Forensic Medicine, among other things, on the grounds that the act published in the Official Gazette is not “final act in the administrative procedure”, the Applicants were denied the right to “access to the court”, within the meaning of paragraph 1 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of the European Convention on Human Rights.

Finally, based on the circumstances of the present case and also based on the clarifications given in the published Judgment, the Court concluded that the Judgment [ARJ. no. 115/2021] of 18 November 2021 of the Supreme Court of Kosovo in conjunction with the Decision [AA. no. 651/2021] of 6 August 2021 of the Court of Appeals as well as the Decision [A. no. 1430/21] of 5 July 2021 of the Basic Court in Prishtina, should be declared invalid and the case be remanded for retrial to the Basic Court in Prishtina.