Decisions published in October 2023

07.11.2023

During the month of October 2023, fifteen (15) Decisions were published on the website of the Constitutional Court, namely (i) one (1) Judgment; (ii) twelve (12) Resolutions on Inadmissibility; and (iii) two (2) Decisions to reject the referral.

Judgments
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I.
1. KI90/23
Applicant: Shqipdon Fazliu
Published on: 11 October 2023
Request for constitutional review of Judgment [ARJ. no. 114/2022] of the Supreme Court of the Republic of Kosovo of 23 December 2022, in conjunction with the Decision [AA. no. 650/2022] of the Court of Appeals of 1 September 2022 and Decision [A. no. 1875/22] of 2 August 2022 of the Basic Court in Prishtina

The Court assessed the constitutionality of the Judgment [ARJ. no. 114/2022] of 23 December 2022, of the Supreme Court, in conjunction with the Decision [AA. no. 650/2022] of 1 September 2022, of the Court of Appeals and the Decision [A. no. 1875/22] of 2 August 2022, of the Basic Court in Prishtina, which rejected the Applicant’s lawsuit against the decisions of the Kosovo Prosecutorial Council (hereinafter: KPC), of 6 April 2022, regarding the proposal of the candidate for Chief State Prosecutor of the Republic of Kosovo. The essence of the circumstances of this case is connected with the process of electing the Chief State Prosecutor, through the vacancy announced on 14 January 2022, as a result of which, the KPC voted and proposed the candidate for Chief State Prosecutor for appointment to the President of the Republic of Kosovo. On 28 April 2022, the Applicant submitted the first referral to the Constitutional Court for the constitutional review of the Decision of the KPC on the proposal of the candidate for Chief State Prosecutor. The Constitutional Court, by the Resolution on the Inadmissibility of the joint cases KI57/22 and KI79/22, on 4 July 2022, decided that the Applicant’s referral was inadmissible for review on the merits because it did not meet the constitutional criterion of exhaustion of legal remedies. This Judgment of the Court further clarifies that, on 28 July 2022, the Applicant filed a lawsuit with the Basic Court for the initiation of the administrative conflict with the request to postpone the execution of the challenged decisions of the KPC. The regular courts, namely the Basic Court, the Court of Appeals and the Supreme Court, rejected the Applicant’s lawsuit as out of time. The Court, among other things, assessed the claims of the Applicant regarding the violation of the rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights. According to the Applicant’s allegation, among others (i) the first referral submitted to the Constitutional Court, without exhausting the legal means established by law, was submitted based on the prior case law of this Court, and as a result, the Applicant had a reasonable expectation that the Constitutional Court would also treat his referral for the constitutional review of the challenged decisions of the KPC; and (ii) after the decision-making by the Constitutional Court in cases KI57/22 and KI79/22, the latter addressed the Basic Court by initiating the administrative conflict with a lawsuit, claiming, among other things, that his lawsuit to the Basic Court, based on the provisions of the applicable law, should be treated as timely, because as a result of “ignorance or open error of the applicant”, the request for the assessment of the challenged decisions of the KPC, was submitted to the “non-competent authority”, namely the Constitutional Court. As a result, according to the Applicant, there are reasonable reasons, based on which, the Basic Court should have allowed the return to the previous situation for the term of initiation of administrative conflict.
The Court initially elaborates the general principles related to the right to access to justice developed by the case lAW of the European Court of Human Rights and that of the Court, with emphasis on all the cases in which the violation or not of the right to access to justice is addressed, as a result of the interpretation/application of procedural deadlines for the initiation of disputes in administrative/civil proceedings; and then applied the same circumstances of the present case. The Court assessed that, under the circumstances of the Applicant’s case, it is not disputed that the lawsuit for the initiation of the administrative conflict against the challenged decisions of the KPC was submitted out of the legal deadlines established in the Law on Administrative Conflicts. Whereas, in finding that the challenged Judgment of the Supreme Court is not rendered in contradiction with paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights, the Court also emphasized the fact that: (i) compliance with the procedural deadlines defined in the applicable laws and the legitimate purpose of compliance with the principle of legal certainty; and that (ii) in the circumstances of the present case, the interpretation of the regular courts is also proportional in relation to the protection of this principle, also emphasizing the fact that, based on the case law of the European Court of Human Rights and of the Court, all parties bear the responsibility for complying with the requirements set forth in the applicable laws, namely to follow the deadlines and procedures in accordance with the legal provisions.

You can read the notification regarding the Judgment by clicking here

You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo by clicking here

Resolutions on Inadmissibility
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I.
In eleven (11) Resolutions on Inadmissibility published by the Court, the latter found that the Applicants’ referrals are inadmissible based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 48 (Accuracy of the Referral) of the Law on the Constitutional Court, paragraph (2) of Rule 34 (Admissibility Criteria) of the Rules of Procedure of the Court, because (i) the claims of the respective applicants fall into the category of the fourth instance; (ii) reflect claims with “clear or apparent absence of violation””, and/or (iii) the latter are “unsupported or unsubstantiated”.

2. KI193/22
Applicant: Avni Selmani
Published on: 2 October 2023
Request for constitutional review of Judgment [Rev. no. 197/2021] of the Supreme Court of the Republic of Kosovo of 6 July 2022