Decisions from the review session held on 15 January 2020

In the review session held on 15 January 2020, the Constitutional Court of the Republic of Kosovo reviewed and decided on the Referrals: 1. KI 14/18; 2. KI 31/19; 3. KI 41/19; 4. KI 54/19; 5. KI 90/18; 6. KI 71/19; 7. KI 48/19 and 8. KI 39/19.
Below you can read the brief summary of the Court’s decisions (full texts of resolutions and judgments will be submitted to the parties, will be published on the Court’s website and in the Official Gazette during the following days):

1. Judgment
Case: KI 14/18
Applicant: Hysen Kamberi

The subject matter of the Referral was the constitutional review of the Judgment [PML. No. 241/2017], of the Supreme Court of Kosovo of 5 December 2017, in conjunction with Judgment [PAKR. No. 55/2017], of the Court of Appeals of Kosovo of 13 July 2017 and with the Judgment [P. No. 162/004 PR1] of the Serious Crimes Department of the Basic Court in Ferizaj of 2 December 2016. The Applicant alleged that this Judgment violated the rights and freedoms guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 54 [Judicial Protection of Rights] of the Constitution of the Republic of Kosovo, Article 6 (Right to a fair trial) of the European Convention on Human Rights, and Article 10 (Right to a fair and public hearing) of the Universal Declaration of Human Rights.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Constitutional Court, in accordance with Article 113.7 of the Constitution, Articles 20 and 47 of the Law on the Constitutional Court and Rule 59 (1) (a)  of the Rules of Procedure, in the session held on 15 December 2020, with majority of votes, decided:
I. TO DECLARE the Referral admissible;
II. TO HOLD that there has been a violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights;
III. TO DECLARE invalid Judgment [PML. No. 241/2017] of 5 December 2017 of the Supreme Court of the Republic of Kosovo;
IV. TO DECLARE invalid Judgment [PAKR. No. 55/2017] of 13 July 2017, of the Court of Appeals of Kosovo;
V. TO DECLARE invalid Judgment [P. No. 162/2004 PR1] of 2 December 2016, of the Serious Crimes Department of the Basic Court in Ferizaj;
VI. TO REMAND the case for retrial to the Serious Crimes Department of the Basic Court in Ferizaj, in accordance with the findings of this Judgment;
VII. TO ORDER the Serious Crimes Department of the Basic Court in Ferizaj to notify the Court, in accordance with Rule 66 (5) of the Rules of Procedure, about the measures taken to implement the judgment of the Court.

2. Resolution
Case: KI 31/19
Applicant: Shpresa Ferati – Duraku

The subject matter of the Referral was the constitutional review of the Judgment of the Supreme Court of Kosovo [Rev. No. 387/2018], of 5 December 2018, which allegedly violated the Applicant’s rights and freedoms guaranteed by Article 24 [Equality Before the Law], Article 31 paragraph 1 [Right to Fair and Impartial Trial], Article 49 paragraph 1 [Right to Work and Exercise Profession] of the Constitution of the Republic of Kosovo, as well as the rights and freedoms guaranteed by Article 6 paragraph 1 (Right to a fair trial), Article 13 paragraph 1 (Right to an effective remedy), Article 17 paragraph 1 (Prohibition of abuse of rights), and Article 1, paragraph 2 (General prohibition of discrimination) of Additional Protocol No. 12 of the European Convention on Human Rights.
The Referral was based on Article 113.7 of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, in accordance with Article 113.7 of the Constitution, Article 20 of the Law on the Constitutional Court and Rule 39 (2) and 59 (2) of the Rules of Procedure, decided that the Referral is inadmissible.

3. Resolution
Case: KI 41/19
Applicant: Ramadan Koçinaj

The subject matter of the Referral was the constitutional review of the Judgment [AA. No. 395/2018] of the Court of Appeals of Kosovo, of 13 September 2018, which allegedlt violated the Applicant’s fundamental rights and freedoms guaranteed by Article 22 [Direct Applicability of International Agreements and Instruments], Article 46 [Protection of Property], Article 113, paragraph 7 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo, in conjunction with Article 1 of Protocol 1 (Protection of property) of the European Convention on Human Rights.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, in accordance with Article 113.7 of the Constitution, Articles 20 and 47.2 of the Law on the Constitutional Court and Rules 39 (1) (b), 39 (2), 32 (6)  and 59 (2) of the Rules of Procedure, decided that the Referral is inadmissible.

4. Resolution
Case: KI 54/19
Applicant: Pashke Krasniqi

The subject matter of the Referral was the constitutional review of the Judgment [PAKR. No. 329/18] of the Court of Appeals of Kosovo, of 23 August 2018, which allegedly violated the Applicant’s rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, in conjunction with Article 6 (Right to a fair trial) of the European Convention for the Protection of Human Rights.
The Referral was based on Article 113.7 [Jurisdiction and Authorized Parties] of the Constitution, Article 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, in accordance with Article 113.7 of the Constitution, Article 49 of the Law on the Constitutional Court and Rule 39 (1) (c) of the Rules of Procedure, decided that the Referral is inadmissible.

5. Resolution
Case: KI 90/18
Applicant: Nedvedete Ponosheci and Atdhe Ponosheci

The subject matter of the Referral was the constitutional review of the Judgment [Pml. No. 89/2018] of the Supreme Court of Kosovo of 8 May 2018, in conjunction with Decision [PAKR. No. 397/17] of the Court of Appeals of Kosovo, of 19 August 2017 and Judgment [PKR. No. 61/14] of the Basic Court in Gjakova, of 21 June 2017. The Applicants alleged that this Decision violated their rights and freedoms guaranteed by Article 21 [General Principles], Article 22 [Direct Applicability of International Agreements and Instruments], Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights (the ECHR), as well as Article 46 [Protection of Property] of the Constitution with Article 1 of Protocol 1 to the ECHR, and with Articles 53 [Interpretation of Human Rights Provisions] and 54 [Judicial Protection of Rights] of the Constitution.
The Referral was based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, in accordance with Article 113.7 of the Constitution, Article 47 of the Law on the Constitutional Court and Rules 39 (1) (b) e (3) (b) and 59 (2) of the Rules of Procedure, decided that the Referral is inadmissible.

6. Resolution
Case: KI 71/19
Applicant: Avni Vula

The subject matter of the Referral was the constitutional review of: (i) the obligation of the Kosovar state to enact the law on restitution of property and (ii) for declaration null and void of all laws, regulations, decrees and judicial decisions concerning property rights of the former Yugoslavia from 1945 to the present day.
In his Referral, the Applicant alleged violation of Articles 31 [Right to Fair and Impartial Trial] and 46 [Protection of Property] of the Constitution of the Republic of Kosovo, in conjunction with Article 6.1 (Right to a fair trial) and Article 1 of Protocol No. 1 (Protection of Property) of the European Convention on Human Rights.
The Referral was based on paragraphs 1 and 7 of Article 113 of the Constitution of the Republic of Kosovo, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law no. 03/L-121 to the Constitutional Court, as well as Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, in accordance with Article 113.1 of the Constitution, Article 22 of the Law on the Constitutional Court and Rules 39 (1) (a) of the Rules of Procedure, decided that the Referral is inadmissible.

7. Resolution
Case: KI 48/19
Applicant: Nderim Fetahu

The subject matter of the Referral was the constitutional review of the Judgment [ARJ-UZVP. No. 16/2019] of the Supreme Court of Kosovo of 31 January 2019, in conjunction with Judgment [A. A. No. 159/2018] of the Court of Appeals of Kosovo, of 21 November 2018 and Judgment [A. No. 396/2016] of the Basic Court in Prishtina of 23 February 2018. The Applicant alleged that this Judgment violated that the rights and freedoms guaranteed by Articles: 21 [General Principles], 22 [Direct Applicability of International Agreements and Instruments], 23 [Human Dignity], 24 [Equality Before the Law], 37 [Right to Marriage and Family], 45 [Freedom of Election and Participation], 46 [Protection of Property], 47 [Right to Education], 48 [Freedom of Art and Science], 49 [Right to Work and Exercise Profession] and 50 [Rights of Children] of the Constitution of the Republic of Kosovo.
The Referral was based on Article 113.7 [Jurisdiction and Authorized Parties] of the Constitution, Article 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, in accordance with Article 113.7 of the Constitution, Articles 20, 47 and 48 of the Law on the Constitutional Court and Rules 39 (1) (b) and (d), 39 (2) and 57 (1) of the Rules of Procedure, decided that the Referral is inadmissible.

8. Resolution
Case: KI 39/19
Applicant: Raif Maloku

The subject matter of the Referral was the constitutional review of the Decision [AC. No. 4981/2017] of the Court of Appeals of Kosovo, of 15 May 2018, in conjunction with Decision [CN. No. 38/2016] of the Court of Appeals, of 10 October 2017, Decision [Rev. No. 12/2016] of the Supreme Court, of 18 January 2016, Decision [Ac. No. 3824/2015] of the Court of Appeals, of 29 October 2015, and Decision [C. No. 568/2014] of the Basic Court, of 14 April 2015. In his Referral, the Applicant alleged that these decisions violated the fundamental rights and freedoms guaranteed by Article 3 [Equality Before the Law], paragraph 1 of Article 16 [Supremacy of the Constitution], paragraphs 1 and 2 of Article 19 [Applicability of International Law], Article 21 [General Principles], Article 22 [Direct Applicability of International Agreements and Instruments], Article 24 [Equality Before the Law], paragraphs 1, 2 and 3 of Article 31 [Right to Fair and Impartial Trial], Article 37 [Right to Marriage and Family] and Article 50 [Rights of Children] of the Constitution of the Republic of Kosovo.
The Referral was based on Article 113.7 of the Constitution, Articles 22 [Processing Referrals] and 47 [Individual Requests] of Law No. 03/L-121 on the Constitutional Court, and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court.
– The Court, in accordance with paragraphs 1 and 7 of 113 of the Constitution, Article 49 of the Law on the Constitutional Court and Rule 39 (1) (c) and (3) (b) of the  Rules of Procedure, decided that the Referral is inadmissible.