Constitutional Court

KI68/19, Applicant: Antigona Gerqari, Constitutional review of Decision No. 677 of the Senate of the University of Prishtina “Hasan Prishtina”, of 19 March 2019

KI68/19, Resolution rendered on 27 November 2019, published on 10 January 2020

Keywords: individual referral, non-exhaustion of legal remedies, discrimination, principle of subsidiarity, inadmissible referral.

The Applicant challenges the constitutionality of Decision Nr. 677 of the Senate of the University of Prishtina “Hasan Prishtina” of 19 March 2019, alleging that she was discriminated against in the selection in the position of a teacher because of her age.

The Court noted that the Applicant submitted the Referral to the Court, and has not previously initiated administrative proceedings before the regular courts in order to challenge the decision of the UP Senate No. 667 of 19 March 2019. The Court noted that the Applicant’s allegations of discrimination based on her age are premature and that the Court – in accordance with the principle of subsidiarity – cannot assess these allegations without first having been raised and assessed by the regular courts. The Court also noted that the Applicant did not do everything that could be reasonably expected of her in relation to exhaustion of legal remedies or that there existed special circumstances absolving the Applicant from the requirement to exhaust all legal remedies.

The Court concluded that the Referral on the constitutional basis, due to the failure to exhaust all legal remedies, is to be declared inadmissible in accordance with Article 113.7 of the Constitution, Articles 20 and 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure.