Constitutional Court

KI140/17, Applicant: Merita Dervishi, Constitutional review of Judgment ARJ. UZVP. No. 55/2017 of the Supreme Court of Kosovo, of 30 October 2017

KI140/17, Resolution on Inadmissibility, adopted on 29 May 2019, published on 21.06.2019

Keywords: individual referral, administrative procedure, manifestly ill-founded referral, inadmissible referral, Article 24 [Equality Before the Law], Article 31 [Right to Fair and Impartial Trial] in conjunction with Article 6 (Right to a fair trial) of the ECHR, Article 32 [Right to Legal Remedies] Article 54 [Judicial Protection of Rights], and Article 49 [Right to Work and Exercise Profession] of the Constitution.

The Applicant in substance alleges that in violation of Articles 32 and 54 of the Constitution it was impossible for her to exercise the legal remedy against the Decision of the Dispute and Appeals Resolution Committee of the Municipality of Skenderaj, because the latter was never served on her.

In assessing the Applicant’s allegations, the Court noted that in fact the Independent Oversight Board for the Kosovo Civil Service and the regular courts, in all three judgments, found that she was served with the decision of the Appeals Committee, and that she did not file a complaint against the latter within the time limits set by the applicable law. In addition, the latter concluded that the procedural actions of the Applicant against this Decision of the Independent Oversight Board for Civil Service of Kosovo were also taken after the deadline set for the administrative silence, which would be the case, even if the claims of the Applicant that she had never been informed of the relevant Decision of the Committee were grounded. In this regard, the Court found that the Applicant in fact had an effective legal remedy at her disposal and that missing the deadlines for the submission of appeals cannot in any way result in the arguable allegations of violation of the rights guaranteed by articles 32 and 54 of the Constitution.

The Court emphasized that it is the duty of the Applicants or their representatives to act with ‘due diligence’ to ensure that their requests for protection of fundamental rights and freedoms have been submitted within the legal time limit. Accordingly, the Court found that the Applicant did not prove in any way that the challenged act, namely Judgment [ARJ. UZVP. No. 55/2017] of the Supreme Court of 30 October 2017 violated her fundamental rights and freedoms, guaranteed by the Constitution. Therefore, the Referral was declared inadmissible and manifestly ill-founded on constitutional basis, as established by Article 113.7 of the Constitution and further specified by Rule 39 (2) of the Rules of Procedure, as the Applicant did not sufficiently substantiate her allegations that the proceedings before the regular courts were in any way unfair or arbitrary and that the challenged Judgment violated the rights and freedoms guaranteed by the Constitution and the ECHR.