Constitutional Court

KI18/19, Applicant: Non-Governmental Organization “Association for Culture, Education and Schooling AKEA“. Constitutional review of Decision KSHA-OJQ/4-2018, of the Ministry of Public Administration, of 25 September 2018

 KI18/19, Resolution on inadmissibility of 20 June 2019, published on 30 July 2019.

Keywords: Individual referral, request for interim measure, Resolution on inadmissibility, premature referral

The applicant was registered in Kosovo on 9 December 2004, based on the applicable UNMIK Regulation in the time of UNMIK Administration (No. 1999/22), while on 11 December 2009, the Organization made an pre-registration at the Ministry of Public Administration (MPA) of the Republic of Kosovo, in accordance with the new Law no. 03/L-134 on Freedom of Association in Non-Governmental Organizations.

The applicant freely conducted its activities till the 17 September 2014, when MPA rendered a decision on temporary suspension of their activities, along with the reasoning „The competent security authority filed a request for suspension of activities of the NGO “Association for Culture, Education and Schooling (AKEA)”

 During the period from 2014 till 2018, the MPA rendered 4 decisions in which the suspension of activities of the applicant was prolonged.

 The applicant challenged every decision of MPA on suspension of the activities by appealing to the Commission for NGO appeals review, however, all appeals of the applicant were rejected.

 The applicant also initiated two procedures (administrative and court procedures) in relation to the annulment of the MPA decisions.

The first administrative procedure of 18 November 2014, in relation to the annulment of the first MPA decision of 17 September 2014, resulted in 3 Court decision in two court instances, which lead case related to Judgment  [A.br.2369/2018]  of the Basic Court, in the retrial to be found once again before the MPA.

 The Basic Court concluded, inert alia, in its Judgment that there are deficiencies in the MPA decision and that they “interfere with the assessment of the legality of the challenged decision, and in this direction, the court obliged the respondent authority (MPA) to act in the repeated procedure in accordance with the remarks given in the judgment and to amend the abovementioned deficiencies, and to render a fair decision based on the law”.

 The applicant initiated the second Court procedure before the Basic Court on 1 November  2018, in which the applicant asked a suspension of the execution of the MPA decision of 25 September 2018, until the MPA, upon the Judgment of the Basic Court, render a new decision. This procedure is currently before the Appellate Court.

The applicant stated before the Constitutional Court that the decisions of MPA violates his rights and freedoms guaranteed with paragraph 2 of Article 24 [Equality Before the Law], Article 44 [Freedom of Association], paragraph 3 of Article 46 [Protection of property] and Article 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution of the Republic of Kosovo, and with Article 11 (Freedom of assembly and association), Article 14 (Prohibition of discrimination), and also of Article 1 Protocol 1 (Protection of Property) of the European Convention on Human Rights.

 The Applicant specifically stated that “he did not have effective legal remedies available for him to protect his constitutional rights, and accordingly he requested the Constitutional Court to accept the referral and, in the content of the case, to assess whether the previous MPA procedures and procedures of regular courts violated his rights and freedoms guaranteed by the Constitution and ECHR”.

In order to respond to the applicants’ request whether, in this specific case, he had to fulfill the required formal conditions for the exhaustion of all legal remedies, or he could be exempted from this obligation, the Court observed the case-law of the ECtHR, as well as the case-law of the Court, where 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 was established by the case-law of ECtHR, where the Court concluded that it should first of all determine whether the applicant had in the specific case available legal remedies prescribed by law and if he used such remedies, would he be able to protect his constitutional rights, as well as the rights envisaged by the ECHR, before submitting his referral to the Constitutional Court.

Subsequently, the Court dealt with the issue of the effectiveness of remedies in the specific case that the applicant had, in accordance with the law at its disposal, and in that regard, the Court recused to the ECtHR test which involves analyzing the following questions:

1. was the remedy in the case of the applicant prescribed by the applicable law
2. was the legal remedy available to the applicant
3. was the legal remedy effective in practice
4. were there any obstacles and special conditions in the use of the legal remedy

 Based on the test that the Court analyzed in detail in its decision on the inadmissibility of the referral, it found that: a) that the applicant had at his disposal during the entire proceedings a legal remedy provided by law, b) it was at accessible any time, c) which, in accordance with the applicable law, envisages its efficiency and effectiveness in practice, and d) the use of the legal remedy provided for by the law is not conditioned by any particular circumstances or obstacles.

Having considered all of the foregoing, the Court found that the proceedings initiated by the Applicant are still in the decision-making stage, and concluded that the Applicant’s referral submitted before the Constitutional Court is premature.

The Court specifically stated the fact that “giving priority to judicial protection of rights before ordinary courts and other competent bodies is a very important aspect of the protection of human rights that the Constitutional Court always takes into account. In this regard, the Court specifically stated that all decisions of state bodies, including the administrative decisions of the MPA on suspending the activities of the applicant are subject to judicial control”.

At the end, the Court concluded the Applicant still had not exhausted all legal remedies prescribed in Article 113 paragraph 7 of the Constitution, Article 47.2 of the Law and Rule 39 (1) (b) of the Rules of Procedure, and subsequently the request for interim measure is rejected pursuant to Article 27.1 of the Law and in accordance to Rule 57. (4) (a) of the Rules of Procedure.