Constitutional Court

KI42/24, Applicant: Vasilije Arsić, constitutional review of the Regulation of the Central Bank of the Republic of Kosovo on Cash Operations

KI42/24 Resolution on inadmissibility of 14 May 2024 published on 27 June 2024

Key words: individual referral, Central Bank of Kosovo, euro currency, non-exhaustion of legal remedies, inadmissible referral

The circumstances of the present case concern the adoption of the Regulation on Cash Operations by the Board of the Central Bank of the Republic of Kosovo, in accordance with article 35 (Euro currency) through which, it is determined that (i) the only currency allowed to be used for carrying out cash payment transactions and in the payment system in the Republic of Kosovo, is euro, as the sole currency also within the meaning of article 11 [Currency] of the Constitution of the Republic of Kosovo and articles 16 (Issuance of currency), 17 (Exchange of euro banknotes and coins) and 18 (Unfit euro banknotes and coins) of Law no. 03/L-209 on Central Bank of the Republic of Kosovo; and (ii) the Central Bank of the Republic of Kosovo is the only monetary authority that can decide on the permitted denominations of the euro currency for circulation in the Republic of Kosovo.

The applicant before the Court challenged the constitutionality of the abovementioned Regulation of the Central Bank of Republic of Kosovo, claiming that it was rendered in violation of the rights guaranteed by articles 7 [Values], 11 [Currency], 22 [Direct Applicability of International Agreements and Instruments], 23 [Human Dignity], 24 [Equality Before the Law], 25 [Right to Life], 46 [Protection of Property ], 49 [Right to Work and Practice Profession], 51 [Health and Social Protection], 57 [General Principles], 58 [Responsibilities of the State] and 59 [Rights of Communities and Their Members] of the Constitution, essentially, claiming that article 35 (Euro currency) of the Central Bank Regulation, is indirectly discriminatory against the Serb community in the Republic of Kosovo, among others, “since it primarily affects the Serb community in Kosovo […] even though the regulation itself does not expressly contain discriminatory provisions, the fact that its application is discriminatory indicates indirect discrimination.”

The Court’s Resolution on Inadmissibility places emphasis on the consolidated case-law of the Court in the context of the constitutional obligation to exhaust legal remedies, including with respect to contesting sub-legal acts. It reiterates that, based on the Constitution of the Republic of Kosovo, individuals are authorized to refer violations by public authorities of their individual rights and freedoms, guaranteed by the Constitution, but only after exhausting all legal remedies established by law. The Resolution on Inadmissibility reiterates that the exhaustion of legal remedies is a constitutional and legal obligation, and beyond the obligation of the individual to exhaust the available legal remedies, it also reflects the limitations on the jurisdiction of the Constitutional Court in relation to the regular courts, and which, based on the principle of subsidiarity, have the primary competence to examine the allegations of individuals for the violation of their fundamental rights and freedoms. Exceptions from this constitutional obligation have been clarified by the Court throughout its case-law over the years, including based also on the case-law of the European Court of Human Rights and the relevant Opinions of the Venice Commission. According to the clarifications given through the case-law of the Court and the Resolution on Inadmissibility, the exceptions from this obligation are based on the individual’s own burden of proof, namely the applicants, must, among others and first, argue that (i) there is no available legal remedy; or that (ii) the applicant has taken all measures to exhaust the legal remedies provided by law, but that the respective legal remedy is not effective, available and/or accessible. In the circumstances of the present case, the applicant emphasizes that there is no legal remedy available to challenge the legality and constitutionality of the aforementioned Regulation of the Central Bank of the Republic of Kosovo.

Having said this, the Constitutional Court, throughout its case-law, has continuously emphasized that the applicable law on administrative conflicts provides an effective legal remedy within the legal order of the Republic of Kosovo. Moreover, recently, it has also emphasized through its case-law, including in the case KI10/22, with the Applicant The Trade Union of the Forensic Medicine Institute, that even the sub-legal acts, such as the contested Regulation of the Central Bank, are subject to administrative control by regular courts and that the latter, have full jurisdiction to assess the legality of such acts. According to the clarifications given in the Resolution on Inadmissibility, the applicant has not presented any argument before the Court, as to why the aforementioned legal remedies are not effective, available and/or accessible in the circumstances of his case and consequently, the Court found that the referral should be declared inadmissible due to non-exhaustion of legal remedies as provided by paragraph 7 of article 113 [Jurisdiction and Authorized Parties] of the Constitution, article 47 (Individual Requests) of the Law on Constitutional Court, and point (b) of paragraph 1 of rule 34 (Admissibility criteria) of the Rules of Procedure of the Court.