Constitutional Court

KI229/19, Applicant: Non-Governmental Organization “Association for Culture, Education and Schooling AKEA”. Constitutional review of Decision ARJ-UZVP.no.109/2019 of the Supreme Court of Kosovo, of 7 October 2019, as well as Decisions of the Ministry of Public Administration no.02/2014, of 23 October 2014, no.05 /2015, of 16 December 2015, no.06/470-3/2016 of 8 November 2016, and Decision Ref. KSHA-OJQ/4-2018, of 25 September 2018

 KI229/19, resolution on inadmissibility of 20 January 2021, published on 15 February 2021

 Keywords: individual referral, freedom of association, Resolution on inadmissibility, non-exhaustion of legal remedies

The Applicant is submitting a Referral to the Court for the second time. The Applicant’s first Referral was registered in the Court Register under number KI18/19, and was decided by the Constitutional Court by the Resolution on Inadmissibility KI 18/19, of 20 June 2019.

The Applicant was registered as a Non-Governmental Organization in the Republic of Kosovo on 9 December 2004.

The Applicant has carried out his activities until 17 September 2014, when the Ministry of Public Administration (hereinafter: the MPA) issued a decision to temporarily suspend the exercise of its activity, on the grounds that there was a reasonable suspicion that the activity exercised by the Applicant does not correspond to the legal-constitutional order of the Republic of Kosovo. The Applicant filed an appeal with the Commission for Reviewing of NGO Complaints against the above-mentioned Decision of the MPA (hereinafter: the Complaints Commission), and the latter rejected the Applicant’s appeal as ungrounded.

The Applicant has addressed the Basic Court in Prishtina against the aforementioned Decision of the Complaints Commission. The Basic Court in Prishtina by Judgment [A.nr.2345/2014] approved the Applicant’s complaint and remanded the case for reconsideration to the MPA. The Applicant filed an appeal with the Court of Appeals against the aforementioned Judgment of the Basic Court in Prishtina. The Court of Appeals by Judgment [AA.no.76/18] upheld the Applicant’s appeal, and consequently annulled the above-mentioned Judgment of the Basic Court in Prishtina on the grounds that it was unclear and unenforceable. The Basic Court acting in the re-trial through Judgment [A.no.2369/2018] again approved the claimant’s statement of claim, annulled the decision of the Complaints Commission and remanded the case for reconsideration to the MPA. The Applicant again filed an appeal with the Court of Appeals against the above-mentioned Judgment of the Basic Court.

The Applicant simultaneously addressed the Constitutional Court with a Referral, and the latter, by a Resolution on Inadmissibility in Case KI18/19, rejected the Applicant’s Referral as inadmissible after having found that the legal remedies had not been exhausted.

The Court of Appeals by Judgment [AA.no.137/2019] rejected as ungrounded the Applicant’s appeal filed against the aforementioned Judgment to the Basic Court in Prishtina. The Applicant filed a request for extraordinary review of the Judgment of the Court of Appeals with the Supreme Court, which by Decision [ARJ-UZVP.no.109/2019] dismissed the Applicant’s request as inadmissible.

 In the time period from 2014 to 2018, the MPA issued 4 decisions whereby it extended the suspension of the Applicant’s work activities.

 The Applicant challenged every decision of the MPA suspending the performance of its activity by complaining to the Commission for Reviewing of NGO Complaints, however all the Applicant’s complaints were rejected.

On 10 October 2019, the MPA lifted the suspension imposed on the Applicant’s activity, respectively, the MPA Department of NGOs restored the Applicant’s active legal status. The MPA clarified that the active status of the Applicant was restored as active since the fourth decision on the suspension of the Applicant’s activity “was no longer in force, as its 1 year deadline has expired.” 

The Applicant stated before the Constitutional Court that the challenged decisions have violated his rights and freedoms guaranteed by Article 4 [Form of Government and Separation of Power], Article 24 [Equality before the Law], Article 31 [Right to  Fair and Impartial Trial], Article 44 [Freedom of Association], Article 46 [Protection of Property], Article 54 [Judicial Protection of Rights] of the Constitution of the Republic (hereinafter: Constitution), as well as Article 6 (Right to a fair trial), Article 11 (Freedom of assembly and association), Article 14 (Prohibition of discrimination) and Article 1(Protection of Property) of Protocol No. 1 of the ECHR.

The Applicant, among other things, alleges before the Court that the Judgment [ARJ-UZVP.no.109/2019] of the Supreme Court in its reasoning- initially does not distinguish between an “unmeritorious” and a “meritorious” decision. Secondly, the Supreme Court does not distinguish between a final decision and a decision which is not final. Referring to paragraphs 4 and 5 of Article 4 of the Constitution, the Applicant alleges that based on the constitutional principle of separation of powers, it is completely wrong to say that an “unmeritorious” decision of the court of second instance, whereby a case is remanded to the administrative body for reconsideration, is not a final decision.

The Court, in response to the Applicant’s request whether in this case it must meet the formal conditions required for the exhaustion of all legal remedies, or it can be exempted from this requirement, examined both the case law of the ECtHR as well as its own case law, wherein the basic principles and principles of exhaustion of legal remedies are established.

In this regard, the Court took into account the ‘Concept of exhaustion of legal remedies” which is defined by the case law of the ECtHR, and concluded that it must first determine whether the Applicant in the present case has had available legal remedies under the law, by the use of which he could protect his constitutional rights, as well as the rights provided by the ECHR, prior to submitting his Referral to the Constitutional Court.

Accordingly, in respect to the Applicant’s allegations made against the MPA Decisions, which the Applicant is challenging before the Court and which concern the second, third and fourth suspension of the Applicant’s scope of activity, the Court assessed that the Applicant has not exhausted the legal remedies provided by law, be it in administrative proceedings and/or in  court proceedings.

With respect to the Decision ARJ-UZVP.no.109/2019 of the Supreme Court of Kosovo, of 7 October 2019, which concerns the first procedure of suspension of the Applicant’s scope of activity by the MPA Decision, the Court found that the Applicant, despite having pursued the legal procedures for challenging the findings of the Judgment of the Basic Court in Prishtina, before the Court of Appeals and the Supreme Court, he has not exhausted the legal remedies for filing a referral with the Court, for the fact that the Judgment [AA.no.137/2019] of the Court of Appeals, of 24 June 2019, has confirmed the Judgment of the Basic Court in Prishtina, by which the issue whether the decision to suspend the Applicant’s activity for the first time in 2014 was lawful, is remanded to the MPA and the issue concerning the legality of the decision on the first suspension of the Applicant’s activity has yet not been resolved  in a final form.

Finally, the Court finds that the Applicant has not yet exhausted all legal remedies provided by Article 113, paragraph 7 of the Constitution, Article 47.2 of the Law and Rule 39 (1) (b) of the Rules of Procedure.