Constitutional Court

KI 46/18, Constitutional review of Decision  Rev. No. 9/2018 of the Supreme Court of the Republic of Kosovo, of 29 January 2018

KI 46/18, Applicant: Behxhet Fejza, Ahmet Haxholli, Fehmi Shahini, Beqir Latifi and Skender Llugiqi, Resolution of 16 January 2020

Keywords: Individual referral, non-reasoned decision, equality before the law 

The Applicant alleged that the challenged Judgment Rev. No. 9/2018 of the Supreme Court, of 29 January 2018, violated Articles 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution of the Republic of Kosovo. According to the Applicants, these rights were allegedly violated because the regular courts gave contradictory reasoning regarding the right to appeal against the decision rejecting the request to Return to Previous Situation filed by the Applicants’ representative.

The Court in the Judgment referred to its previous cases, and also by taking into account Article 53 of the Constitution, took into account and applied the ECtHR case law regarding the right to an effective legal remedy [Article 13 of the ECHR] and in this case as reference among many others cases took:, case Gjyli v. Albania ECtHR Judgment of 29 September 2009; , Ilhan v. Turkey Judgment of 27 June 2000, Hasan and Chaush v. Bulgaria, ECtHR Judgment of 26 October 2000; Kudla v. Poland ECtHR Judgment of 26 October 2000). The Court in the Judgment also elaborated the principle of subsidiarity and referred to its earlier cases, such as: KI158/18, Applicant Ajet Ajeti, Resolution on Inadmissibility, of 13 April 2019, paras 40-42; KI07 15, Applicant Shefki Zogiani, Resolution on Inadmissibility of 8 December 2016).

After examining the Applicants’ allegations and the evidence adduced by them in the Referral, the Court concluded that the regular courts at all three court instances have enabled the Applicants to use legal remedies and have given them the opportunity to express their views and substantiate legal violations. which they allege. At the same time the Court also finds that the appeals were examined and the Applicants were served with the reasoning in the court decisions, therefore, the Court found that the Applicants’ right to legal remedy was not violated, as alleged before the Court.

The Court also stated that it is not its duty to assess the application of the law because it is the duty of the regular courts, and it also emphasized the fact that it is not its task to verify whether the Applicants’ representative was served with the summon for the hearing in the Basic Court, because it is not its task, but of the Applicant to bring evidence before the court regarding that allegation.

Regarding the issue raised by the Applicants that the regular courts in their decisions failed to clarify the issue as to the correct terminology of the appeal and the particular appeal provided by law. The Court has consistently emphasized that the interpretation of law, its application to specific cases, and the assessment of facts and circumstances of specific cases are not its competence and that they are issues that separate the jurisdiction of the regular courts from the jurisdiction of the Constitutional Court. The Court also reiterates that the issue of determining the legal institutes of appeal, including the assessment of their admissibility or inadmissibility, is a competence of the regular courts and not of the Constitutional Court.

The Court also held that the Decision of the Supreme Court was not unclear and that all the data which the Applicant alleges to be missing (such as parties to the dispute, the challenged decisions, etc.) are part of the Decision of the Supreme Court, either in the enacting clause in the part of its reasoning.

In sum, the Court considers that the Referral is manifestly ill-founded on constitutional basis, as the Applicant does not sufficiently prove and substantiate his allegation of violation of the rights guaranteed by the Constitution and the Convention, therefore, the Court concludes that the Referral is manifestly ill-founded on constitutional basis and, in accordance with Rule 39 (2) of the Rules of Procedure, is declared inadmissible.