Constitutional Court

KI 58/20, Applicant: Alush Kastrati, Constitutional review of Judgment AC-I-15-0052 of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters, of 5 December 2019

KI 58/20, resolution on inadmissibility, of 20 January 2021, published on 15 February 2021.

Keywords: individual referral, principle of subsidiarity, civil proceedings, exhaustion of legal remedies, inadmissible referral 

In the circumstances of the present case, the Appellate Panel of the SCSC decided to reject the Applicant’s appeal as inadmissible. The Appellate Panel of the SCSC found that the Applicant had filed the appeal 6 (six) days out of the legal deadline. The Appellate Panel dismisses the appellant’s appeal as out of time, pursuant to Section 10.6 (a) of UNMIK Regulation 2003/13.

The Applicant alleged before the Constitutional Court the violation of Articles 31 [Right to  Fair and Impartial Trial], 32 [Right to Legal Remedies], 54 [Judicial Protection of Rights] of the Constitution of the Republic of Kosovo. The Applicant alleged that he was late in filing an appeal with the SCSC Appellate Panel because the challenged decision of the SCSC Specialized Panel was served on another person having the same name. The Applicant raised the issue of missing the deadline for appeal for the first time before the Constitutional Court, namely without having previously raised that issue before the Appellate Panel in accordance with the principle of subsidiarity.

The Court found that there is no evidence that the Applicant has requested an extension of the time limit for filing an appeal, in accordance with Articles 13 and 21 of the Law on the Special Chamber of the Supreme Court. The Constitutional Court added that – in accordance with the principle of subsidiarity – it could not assess this case without it having been previously raised and assessed in the proceedings before the regular courts.

The Court also noted that pursuant to the consolidated case law of the ECtHR, the applicants are not exempted from the requirement to raise cases before the domestic courts, even in cases where the domestic courts have the opportunity or are obliged to review the case in respect of the rights protected by the ECHR upon their own initiative.

The Court concluded that the Referral must be declared inadmissible, since the Applicant has not exhausted all legal remedies in accordance with Article 113.7 of the Constitution, Article 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure.