Constitutional Court

KI 133/17, Applicant: Ali Gashi, Constitutional review of Decision Rev. no. 96/2017 of the Supreme Court, of 1 June 2017

KI 133/17, Decision adopted on 29 July 2019, published on 29 August 2019.

Keywords: individual referral, public authorities, religious communities, access to Court, proportionality principle, ratione materiae, civil right, serious and real dispute, inadmissible referral.   

The Applicant worked as Chief Imam in the Islamic Community Council in Peja and he was retired on 27 August 2009. Based on decisions of the Islamic Community Council of Kosovo, he received the pension from the Islamic Community Council of Kosovo until 30 December 2011, the day when the ICC in Peja stopped with the payment for the Applicant. The Applicant challenged this decision of the ICC in Peja, firstly before the structures of the Islamic Community of Kosovo, and later, through the regular courts. The Basic Court and the Court of Appeals had granted, namely confirmed the allegation of the Applicant. However, these Judgments were annulled by the Supreme Court by its Decision [Rev. no. 96/2017] of 1 June 2017, where the Court concluded that the courts in Republic of Kosovo have no jurisdiction, pursuant to the paragraph 2 Article 39 of the Constitution and paragraph 2 Article 5, and paragraph 2 Article 7 of the UNMIK Regulation on Freedom of Religion, to decide over the litigation procedure between the Applicant and the Islamic Community Council in Peja. This Judgment of the Supreme Court was challenged by the Applicant before the Court, stating that the Judgment, inter alia, was rendered in violation of his right of access to court which is guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human.

When considering the Applicant’s allegations, the Court first pointed out the general principles of consolidated case law of the European Court of Human Rights concerning the right of access to court explaining: (i) the legal nature and the scope of the right of access to the court; (ii) conditions which have to be fulfilled in order to claim the right of access to the court; and (iii) limitations, under certain circumstances, on the right of access to the court.

Based on the practice of ECHR, in the circumstances of this particular case, the Court found that the Applicant does not have “the civil right”, because his right to “pension-material assistance”, was regulated by the internal rules and decisions of the Islamic Community of Kosovo, and was not based on the applicable laws in the Republic of Kosovo. The Court also assessed whether the restriction on right of access to a court had a “reasonable proportionality correlation between the used means and the purpose to be achieved”.

The Court further emphasized that in accordance with Article 39 of the Constitution, inter alia, (i) religious communities have autonomy; and (ii) are free to independently regulate their internal organization. However, the Court also stated that this autonomy and organizational independence of religious communities does not necessarily result in a restriction of the right of access to a court guaranteed by Article 31 of the Constitution in conjunction to Article 6 of the ECHR in relation to individuals serving in religious communities. The Court emphasized that the applicability of Article 31 of the Constitution in conjunction with Article 6 ECHR, should be evaluated based on the circumstances of every case in order to determine whether there is a “civil right” and whether there is a ”dispute”, circumstances these that guarantee the right of access to court also to all individuals serving in Religious Communities.

However, in the circumstance of this particular case, the Court concluded that there was no “civil right” established by civil laws in the Republic of Kosovo, and as a result, Article 31 of the Constitution in conjunction with Article 6 ECHR is not applicable. Hence, the Referral of the applicant in not ratione materiae in accordance with the Constitution and pursuant to item b paragraph 3 Rule 39 of the Rules of Procedure, has to be declared inadmissible.