Constitutional Court

KI136/19, Applicant: L.L.C. “CO COLINA”, Constitutional review of Law [No.06/L-155] on the Prohibition of Games of Chance

KI 136/19, Resolution on inadmissibility of 28 April 2021, published on 19 May 2021

Keywords: individual referral, request for constitutional review of the law, inadmissible referral, non-exhaustion of legal remedies, premature referral

The Referral was submitted by L.L.C. “CO COLINA” which was represented by Mr. Bashkim Latifi, a lawyer from Prishtina.

The Applicant challenged the Article 1 of Law No.06/L-155 on the Prohibition of Games of Chance, adopted by the Assembly of the Republic of Kosovo, on the grounds that this Law has violated his rights protected by Article 46 [Protection of Property] of the Constitution and Article 1 of Protocol No. 1 to the ECHR. The Applicant, in essence, alleges that it is a direct victim of the challenged Law because despite the valid license and work permit which it had possessed “The Law has directly, and with immediate effect, without requiring any other measure of implementation, prohibited the games of chance and, de facto, revoked the license for conducting the activity of sports betting, thus making illegal any exercise of this activity after its entry into force.

With regard to this Referral, the Court notes that before submitting his Referral to the Court the Applicant had also filed a claim for administrative conflict with the Basic Court in Prishtina on 5 August 2019, respectively several weeks prior to submitting its Referral to the Constitutional Court. The Court was notified about this procedure only after seeking additional clarifications from the Applicant.

In this respect, the Court noted that despite the Applicant’s allegation about non-existence of the measures of implementation, in fact there have been issued several “acts, decisions or measures of implementation” which have served for the implementation of the challenged Law. The Acts issued by the Tax Administration of Kosovo [the Notification no. ATK/DLF07/18-2019 of 3 May 2019 and the Decision no. 238/2019 of 4 July 2019] the Applicant has had the legal opportunity to challenge in an administrative procedure before the regular courts, as he has also done.

Therefore, the Court found that the Applicant’s allegation that there is no act, decision or measure of implementation that has been issued based on the challenged Law-is an inaccurate allegation that has not been substantiated by him. This is due to the fact that pursuant to the provisions of the challenged Law, the relevant public authorities, more specifically the Tax Administration of Kosovo, has reacted and undertaken measures to terminate the Applicant’s license and work permit which it had obtained under the previous applicable legislation on the games of chance in the Republic of Kosovo. From this it follows that the Applicant has failed to prove that there has been an interference with his rights and freedoms without any subsequent measure of implementation.

The Court also noted that, the claim for an administrative conflict initiated by the Applicant against the Decision [no.238/2019] of the Tax Administration of Kosovo in the Basic Court in Prishtina on 5 August 2019 – is a judicial process which is already under an ongoing review. The Basic Court in Prishtina has reviewed the said claim and decided to reject it as ungrounded on 12 February 2021. On the basis of the legal advice in the decision of the Basic Court but also of the provisions of the applicable legislation, the Applicant has had sixty (60) days to file an appeal with the Court of Appeals.

Moreover, the Court also noted that the Applicant has requested from the regular courts to refer the issue of the constitutionality of the law to the Constitutional Court based on Article 113.8 of the Constitution. The Court states that also this issue may potentially be a part of the future decision-making of the regular judiciary and therefore the Court should refrain from any prior declaration regarding this aspect at this stage in order to not prejudice further developments in respect of this matter.

In the light of the foregoing and as long as various issues related to this case may still be pending before the regular courts and as long as the Applicant still has available legal remedies to pursue the realization of his rights, the Constitutional Court, based on the principle of subsidiarity, does not consider it reasonable to interfere with this matter.

As it has been consistently states by the Court through its case law, the purpose and the reasoning of the obligation to exhaust the legal remedies or the rule of exhaustion is to provide the relevant authorities, primarily the regular courts, with an opportunity to prevent or to rectify the alleged violations of the Constitution. It is based on the assumption reflected in Article 32 [Right to Legal Remedies] of the Constitution and Article 13 (Right to an effective remedy) of the ECHR that the legal order of the Republic of Kosovo provides an effective remedy for protection of the rights and fundamental freedoms guaranteed by the Constitution.

In the end, the Court finds that in the circumstances of the present case there have existed measures of implementation for which it could have complained about in order to realize its rights and freedoms which the Applicant alleges to have been violated. Given that it has complained against those measures in the regular court proceedings, the present Referral is considered premature and must be rejected as inadmissible pursuant to Article 113.7 of the Constitution, Articles 47 and 49 of the Law and Rule 39 (1) ( b) of the Rules of Procedure.

Finally, there must also be clarified the fact that in no way does the Court prejudice neither the constitutionality of the challenged Law nor the constitutionality of the application of that Law in the circumstances of the Applicant’s case. In this case, the Court did not deal with such assessments but has limited itself to the level of procedural assessment of the conditions of admissibility.