- The Constitutional Court
Pristina, 1 November 2010, Today the Constitutional Court issued its Judgment in the above case that was unanimously decided earlier this month. The case concerns the assessment of the constitutionality of the alleged violation of the Applicant’s freedom of movement as guaranteed by the Constitution of the Republic of Kosovo and the European Convention on Human Rights (the Convention). According to the Applicant the right to leave Kosovo has been violated by refusing the issuance of his passport – a document required by him to travel abroad. The Applicant further argued that in the Kosovo legal system there is no effective legal remedy to pursue his right to leave the country.
The Constitutional Court considered whether legal remedies were available to the Applicant and whether he had exhausted them and whether or not they were effective. The Opposing Parties during the public hearing, held on 14 July 2010, explained the current practice in detail but none of the parties were able to indicate that there were remedies that were available to the Applicant situation nor whether any remedy was effective. Consequently, the Court found that there were no effective remedies at the Applicant’s disposal which he could pursue and exhaust. The Court declared the Referral as admissible.
The Court considered whether there was a violation of the right to leave the country as guaranteed by Article 35 of the Constitution and Article 2 of Protocol No. 4 to the Convention. It found that the judicial procedure failed to satisfy the requirements of Article 2 of Protocol No. 4 of the Convention. The Court also found that the administrative body responsible for issuing passports did not take account of all of the relevant information in order to ensure that the restriction on the Applicant’s freedom of movement was justified or proportionate. The authorities failed to fulfill their duty to re-examine regularly the measures restricting the Applicant’s freedom of movement. As such the Applicant was subject to measures of an automatic nature, with no limitation as to their scope or duration. Consequently the Court found that there has been a violation of the Applicant’s right to freedom of movement, guaranteed by Article 35 of the Constitution in conjunction with Article 2 paragraph 2 of Protocol No. 4 of the Convention.
The Constitutional Court also considered whether the Applicant’s right to an effective legal remedy has been violated. The Constitutional Court noted that the Opposing Parties signed a Memorandum of Understanding on 21 August 2008 which had the purpose of establishing procedures and responsibilities on the implementation of Article 27 of the Law on Travel Documents. The Court emphasised the Memorandum could only facilitate the implementation of the Law and should not in any circumstances be used as an excuse for non-implementation of the Law. The Court noted that, pursuant to the practice based on the Memorandum, the Applicant’s request for a passport was never considered with sufficient procedural safeguards and thoroughness by an appropriate authority. Accordingly the Court found that practice based on the Memorandum of Understanding of 21 August 2008, applied by the Ministry of Internal Affairs and the Municipal Court prevented the Applicant from enjoying his right to an effective legal remedy in violation of Article 54 of the Constitution in conjunction with Article 13 of the Convention.
Accordingly, the Court found that the Ministry of Internal Affairs should issue a decision on the Applicant’s application for a passport, in accordance with Law on Travel Documents, within 30 days after receipt of the Judgment.
The full text of this Judgement is available at: http://www.gjk-ks.org/