Notification on decision in Case KI 90/23

The Constitutional Court of the Republic of Kosovo has decided regarding the referral in case KI 90/23, with applicant Shqipdon Fazliu, pertaining to the constitutional review of Judgment [ARJ.no.114/2022] of 23 December 2022 of the Supreme Court of the Republic of Kosovo in conjunction with Decision [AA.no.650/2022] of 1 September 2022 of the Court of Appeals and Decision [A.no.1875/22] of 2 August 2022 of the Basic Court in Prishtina, submitted to the Court based on paragraph 7 of article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo.

The Court unanimously has decided to (i) declare the referral admissible; and (ii) to hold that Judgment [ARJ. no. 114/2022] of 23 December 2022 of the Supreme Court of the Republic of Kosovo in conjunction with Decision [AA.no.650/2022] of 1 September 2022 of the Court of Appeals and Decision [A.no.1875/22] of 2 August 2022 of the Department for Administrative Matters of the Basic Court in Prishtina, are not 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’s Judgment clarifies that in the circumstances of the present case before the Court have been challenged the above-mentioned decisions of the regular courts which have rejected as out of time the applicant’s lawsuit for the initiation of the administrative conflict, against the decisions of 6 April 2022 of the Kosovo Prosecutorial Council (hereinafter: KPC) pertaining to the proposal of the candidate for Chief State Prosecutor of the Republic of Kosovo. The Judgment recalls that the essence of the circumstances of this case concerns 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 to the President of Republic of Kosovo for appointment the candidate for the Chief State Prosecutor. The Applicant challenged the evaluation of the KPC evaluation panel, according to which the applicant was ranked the second, initially to the Review commission within the KPC. This commission examined his claims, (i) rejecting as ungrounded the relevant claims related to the non-implementation of the Law no. 06/L-056 on the Prosecutorial Council and Regulation no. 06/2019 on the Appointment of Chief State Prosecutor and Chief Prosecutors of the Prosecutions of the Republic of Kosovo; but (ii) recommending that the objections of the applicant be partially approved, only regarding the claim for the respective scoring of the Evaluation panel, with the proposal that the members of the Evaluation panel review once more the justification pertaining to the respective scoring. On 6 April 2022, the KPC rendered two decisions, namely (i) Decision [No. 474/2022] of the KPC on the rejection of the Review commission’s report for reconsideration; and (ii) Decision [KPK/No. 475/2022] of the KPC on the proposal of the candidate for Chief State Prosecutor. On 28 April 2022 the applicant filed a referral for constitutional review of the above decisions with the Constitutional Court. The latter, through the Resolution on Inadmissibility in the joint cases KI57/22 and KI79/22, on 4 July 2022, decided that the applicant’s referral is inadmissible for review on merits for procedural reasons, namely because the submitted referral did not meet the constitutional criterion pertaining to the exhaustion of legal remedies as established in paragraph 7 of article 113 of the Constitution.

The Court’s Judgment further clarifies that on 28 July 2022, the applicant submitted to the Basic Court a lawsuit for the initiation of the administrative conflict with the proposal for securing the claim through an interim measure, namely a request for the postponement of the execution of the challenged decisions of the KPC. More precisely, before the Basic Court, the applicant raised allegations related to (i) the timeliness of the respective lawsuit; and (ii) the legality and constitutionality of the challenged decisions of the KPC. Regarding the first issue, namely the time limit of the request, the applicant, among others, claimed that his lawsuit should be considered as submitted on time based on paragraph 2 of article 28 (no title) and article 63 (no title) of Law No. 03/L -202 on Administrative Conflicts and/or that the deadline for initiating the administrative conflict should be returned to the previous situation based on articles 129 (no title) and 130 (no title) of Law No. 03/L-006 on the Contested Procedure. According to the applicant and based on the aforementioned articles, the lawsuit in the Basic Court should be considered to have been filed on time because even though it was not submitted within the legal deadlines to the Basic Court, it was submitted on time to the “non-competent body”, namely the Constitutional Court, as a result of “lack of knowledge or an open mistake of the submitter”, namely the applicant. This, according to the applicant’s allegation, among others, because, the applicant had an expectation that in his case, the Constitutional Court would decide the same as in case KI99/14 and KI100/14 regarding the constitutional review of the proposal of the Chief State Prosecutor by the KPC in 2014. Whereas, in relation to the second issue, namely the merits of the respective lawsuit, the Applicant, in essence, raised allegations pertaining to (i) the legality and constitutionality of the KPC Regulation on the Appointment of Chief Prosecutor; and (ii) the method of scoring by the members of the KPC Evaluation Panel, challenging, among other things, the deduction of the points from the maximum ones according to the evaluation criteria as established in the Regulation on the Appointment of Chief Prosecutor without the necessary justification and/or the substance of the respective justification.

The regular courts, namely the Basic Court, the Court of Appeals and the Supreme Court, rejected the applicant’s lawsuit as out of time, emphasizing, among others , that based on the Law on Administrative Conflicts (i) the lawsuit must be filed within thirty (30) days from the date of service of the final administrative act to the party or if the administrative act has not been delivered, within sixty (60) days from the date of service of the administrative act to the party in whose favor the act was issued; while (ii) in the circumstances of the applicant’s case, the lawsuit in relation to the decisions of the KPC of 6 April 2022 was filed on 28 July 2022, and as a result, this lawsuit was filed out of the deadlines stipulated by the applicable law, namely the Law on Administrative Conflicts. In the context of the applicant’s allegation that the lawsuit should be considered timely based on article 28 of the Law on Administrative Conflicts and articles 129 and 130 of the Law on Contested Procedure, because as a result of “lack of knowledge or an open mistake of the submitter”, the lawsuit was submitted to the “non-competent body”, namely the Constitutional Court, the regular courts, in essence, emphasized that these provisions are not applicable in the circumstances of the relevant case. This, among others, because in order for article 28 of the Law on Administrative Conflicts to be applicable, namely in order for the respective lawsuit to have been considered as timely, two cumulative conditions must have been met, namely that (i) the lawsuit must be submitted to the “non-competent body” as a result of “lack of knowledge or an open mistake of the submitter”, and (ii) to have “reached” the competent court after the expiration of the deadline for filing the claim. According to the clarifications given by the regular courts, in the circumstances of the present case, (i) the applicant did not submit the referral to the Constitutional Court as a result of his “lack of knowledge or an open mistake”, because the applicant submitted to the Constitutional Court a referral contesting the constitutionality of the decisions of the KPC; (ii) the Constitutional Court cannot be qualified as a “non-competent body” for the purposes of this article, because it has decided on the referral of the applicant; (iii) the claim submitted to the “non-competent body” must have “reached” the Basic Court after the relevant deadline, while the Constitutional Court does not have the competence to refer/submit the case to the Basic Court; and furthermore (iv) based on the applicable laws of the Republic of Kosovo, namely the relevant provisions of the Law on Administrative Conflicts and the Law on Contested Procedure, the deadlines for initiating the administrative conflict and the court with jurisdiction to review the same, namely the Department for Administrative Matters of the Basic Court are clearly determined. Finally, the regular courts also emphasized that articles 129 and 130 of the Law on Contested Procedure pertaining to the return to the previous situation, are applicable to procedural deadlines during the procedural review of a case and do not apply to restoration of the legal deadline for filing a lawsuit, as claimed by the applicant in the circumstances of the present case.

The applicant challenged before the Court the decision-making of the regular courts, alleging that the decisions were rendered, among others, in violation of his right to access to justice guaranteed by article 31 of the Constitution in conjunction with article 6 of the European Convention on Human Rights. The applicant, among others, emphasizes that (i) the first referral submitted to the Constitutional Court, without exhausting the legal remedies defined by law, was submitted based on the prior case-law of this Court, respectively based on the Court’s Judgment in the cases KI99/14 and KI100/14 but also in cases KI34/17 and KI55/17, through which the constitutionality of the election of the President of the Supreme Court and of the Court of Appeals, was assessed; and as a result, there was a reasonable expectation that the Constitutional Court would also handle in the same manner his request for the constitutional review of the challenged decisions of the KPC; and (ii) after the decision-making by the Constitutional Court in the case KI57/22 and KI79/22, the applicant addressed the Basic Court through the initiation of the administrative conflict by a lawsuit, claiming, among others, that his lawsuit in the Basic Court, based on the provisions of the applicable law, should be treated as filed on time, because as a result of “lack of knowledge or an open mistake of the submitter”, the request for the assessment of the challenged decisions of the KPC was submitted to “non-competent body”, namely the Constitutional Court and that as a consequence, there are reasonable causes, based on which, the Basic Court should have allowed the return to the previous situation for the deadline of the initiation of the administrative conflict.

In dealing with the applicant’s allegations, the Judgment first clarifies that (i) unlike the case KI57/22 and KI79/22, whereby the relevant decisions of the KPC were challenged and the applicant requested their constitutional review and declaration contrary to the Constitution; in the circumstances of the present case, (ii) before the Court, is challenged the Judgment of the Supreme Court which confirmed the decision-making of the Court of Appeals and the Basic Court which rejected the lawsuit of the applicant as out of time pertaining to the initiation of the administrative conflict against the challenged decisions of KPC, with the request that the decisions of the regular courts be declared as contrary to the Constitution, and that the assessment of the decisions of the KPC pertaining to the proposal of the Chief State Prosecutor be remanded to the Basic Court for reconsideration.

The Judgment initially underlines that all the necessary clarifications regarding the declaration as inadmissible of the first referral of the applicant, due to the non-fulfillment of the constitutional obligation for exhaustion of legal remedies provided by law, have been given in the Resolution on Inadmissibility in case KI57/22 and KI79/22, published on 25 July 2022.

Whereas, in reviewing the constitutionality of the Judgment of the Supreme Court challenged in the present case, the Judgment of the Court assesses the applicant’s allegations regarding the violation of his right to access to justice as a result of the decisions of the regular courts, , based on which the initiation of the administrative conflict against the KPC challenged decisions, has been declared as out of time. In this context, the Judgment first elaborates (i) the general principles pertaining to the right to access to justice developed by the case-law of the European Court of Human Rights and the Court, with emphasis on all those cases which dealt with violation or non-violation of the right of access to justice as a result of the interpretation/application of procedural deadlines established by law for initiating disputes in civil proceedings; and then (ii) applied the same to the circumstances of the present case.

In this context, the Judgment clarifies that according to the case-law of the European Court of Human Rights, the assessment whether as a result of the interpretation/application of the procedural deadlines prescribed in the applicable laws, the right of access to justice guaranteed by article 6 of the European Convention for Human Rights may have been violated, it must be subjected to the test of (i) legitimate purpose; and (ii) proportionality. In the context of the first criterion, namely the legitimate purpose, the case-law of the European Court of Human Rights is consistent in that the compliance with the procedural deadlines defined in the applicable laws follows the legitimate purpose of the proper administration of justice and the respect for the principle of legal certainty. While, in the context of the second criterion, namely proportionality, the case-law of the European Court of Human Rights, among others, emphasizes that the courts should avoid both excessive formalism and excessive flexibility in the interpretation of procedural deadlines stipulated in the applicable laws with the purpose of protecting the principle of legal certainty. In principle, and as explained in details in the Judgment, the European Court of Human Rights found a violation of the right to access to justice in the context of the interpretation of the procedural deadlines stipulated in the applicable laws mainly when the relevant public authorities calculated the procedural deadlines for the initiation of lawsuits and/or filing of appeals from the moment of decision-making and not from the moment of the publication of the respective decisions, thus making it impossible for and/or placing a disproportionate burden on the respective parties to exercise their rights defined in the applicable laws. On the other hand, not finding a violation of article 6 of the European Convention on Human Rights in the context of the violation of the right to access to justice, even in cases where the public authorities themselves have incorrectly advised the relevant parties regarding the procedural deadlines for the initiation of claims and/or the filing the appeals, the European Court of Human Rights has emphasized, in principle and among others, the fact that the parties bear the obligation to act with due diligence and based on the procedural deadlines defined in the applicable laws, with emphasis in the circumstances when they are represented in the relevant procedures by authorized representatives.

In the circumstances of the applicant’s case, it is not disputable that the lawsuit for the initiation of the administrative conflict against the challenged decisions of the KPC was filed out of the legal deadlines defined in the Law on Administrative Conflicts. Whereas, all the allegations of the applicant, that (i) his lawsuit in the Basic Court should be considered as filed on time because as a result of “lack of knowledge or an open mistake of the submitter” it was submitted to a “non-competent body”, respectively to the Constitutional Court and that as a result (ii) the deadlines for initiating the claim should be returned to the previous situation, have been addressed and reasoned by three regular courts, and the Court, according to the clarifications given in the Judgment, assesses that the reasoning of the regular courts does not contain excessive formalism and/or arbitrariness in the interpretation of applicable laws. In finding that the challenged Judgment of the Supreme Court was not rendered in violation of paragraph 1 of article 31 of the Constitution in conjunction with paragraph 1 of article 6 of the European Convention on Human Rights, the Court also emphasized the fact that (i) the compliance with the procedural deadlines established in the applicable laws follows the legitimate purpose of compliance with the principle of legal certainty; and (ii) in the circumstance of the concrete case, the interpretation of the regular courts is also proportional in relation to the protection of this principle, emphasizing also the fact that, based on the case-law of the European Court of Human Rights and of the Court, the parties also bear the responsibility to comply with the requirements prescribed in the applicable laws, namely to follow the deadlines and the relevant procedures as per legal provisions.

This translation is unofficial and serves for informational purposes only.

Note:

This press release was prepared by the Secretariat of the Court for informational purposes only. The full text of the decision will be submitted to the parties involved in the case, will be published on the Court’s website and in the Official Gazette, once the relevant procedures established in the Law on the Constitutional Court and the Rules of Procedure of the Court have been completed. The summary published through this notice may be subject to language and technical corrections in the final draft of the decision. To receive notifications on the decisions from the Constitutional Court please register at the Court’s website: https://gjk-ks.org/en/