Abstract
The role of the individual in the society is undeniable and his fundamental rights that are protected by normative acts do not remain only at the level of national protection but they go further in the international legal protection. In fact, Kosovo’s constitutional provisions expressly highlight and define as a value the respecting of the fundamental rights and freedoms. The individual is guaranteed judicial protection of his/her rights but he/she is at the same time empowered to refer violations by public authorities of the fundamental rights and freedoms in the jurisdiction of the Constitutional Court. In the constitutional review where the individual was an authorized party before the constitutional jurisdiction, the convergence of fundamental rights adjudicated and the violation of the fundamental rights and freedoms has been decided upon.
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Notes
- 1.
Constitution of the Republic of Kosovo, 2008, quoted: Rights of Communities and their Members, Articles 57–62. The Constitution of Kosovo – the state recognizes these persons’ special rights, along with the rights and freedoms enjoyed by the majority of the population. The State is obliged to provide the members of non-majority communities with adequate conditions for enjoying special rights as guaranteed by the Constitution. For more, see quoted case law of the Constitutional Court of Kosovo, elaborated in this work.
- 2.
For more, see Articles 28, 46–50 of the Law on the Constitutional Court of the Republic of Kosovo, Law No. 03/L-121, December, 2008.
- 3.
Regarding the joined of referrals, Rules of Procedure of the Constitutional Court of the Republic of Kosovo, on Rule 37, provides: (1) The Secretariat shall provide notice to the President and the Judge Rapporteur that the referral may be related in subject matter to another referral before the Court and directed against the same act of a public authority. The President, upon the recommendation of the Judge Rapporteur may order the joinder of those separate referrals. (2) If a referral addresses two or more laws or other acts of public authority, the Judge Rapporteur shall notify the Secretariat and the President. Upon the recommendation of the Judge Rapporteur, the President may order a separate consideration of the respective elements of the referral if joint consideration does not favor a fair and expeditious determination of the issues. (3) If a party disagrees with the Court’s decision to join or sever referrals, it shall request reconsideration of the decision, together with any factual or legal arguments, within fifteen (15) days of the date of the President’s Order to join or sever referrals.
- 4.
Judgment in the case no. KI 40/09, Applicant Imer Ibrahimi and 48 former employees of the Kosovo Energy Corporation, Constitutional Review of 49 individual judgments of the Supreme Court of the Republic of Kosovo, Ref. no. AGJ 30/10, of 23 June 2010, the Constitutional Court of the Republic of Kosovo (cases were joined because the Court found that they had an identical subject matter, deriving from the same essential problem, and therefore, in compliance with procedural rules, the individual referrals were joined, and were decided by a single judgment upon review).
- 5.
Cases no. “(KI 58/09, KI 59/09, KI 60/09, KI 64/09, KI 66/09, KI 69/09, KI 70/09, KI 72/09, KI 75/09, KI 76/09, KI 77/09, KI 78/09, KI 79/09, KI 03/10, KI 05/10, KI 13/10, case of Gani Prokshi and 15 other former employees of the Kosovo Energy Corporation, against individual judgments of the Supreme Court of the Republic of Kosovo, Ref. no. AGJ 62/10, of 15 October 2010.)” In the decision making process the Constitutional Court references upon decided cases by ECtHR as are mentioned the cases “Prince Hans-Adam II of Liechtenstein v. Germany, no. 42527/98, paras 82–83, ECHR 2001-VIII” and “Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, para. 69, ECHR 2002-VII).; Case García Ruiz v. Spain [GC], no. 30544/96, paragraph 28, European Court on Human Rights [ECHR] 1999-I); Case Edwards v. United Kingdom, App. No 13071/87 adopted on 10 July 1991); Case Ruiz Torija v. Spain, judgment of 9 December 1994, Series A no. 303-A, § 29).
- 6.
Judgment in the cases no. KI 08/10, KI 16/10, KI 22/10, KI 24/10, KI 27/10, KI 36/10, KI 41/10, KI 42/10, KI 45/10, KI 53/10, KI 54/10, KI 56/10, KI 57/10, KI 58/10, KI 59/10, KI 60/10, KI 61/10, KI 63/10, KI 64/10, KI 65/10, KI 66/10, KI 67/10, KI 68/10 KI 71/10, KI 74/10, KI 76/10; Applicant Isuf Mërlaku and 25 other former employees of the Kosovo Energy Corporation, against individual judgments of the Supreme Court of the Republic of Kosovo, Ref. no. AGJ 90/11, 10 March 2011.
- 7.
Judgment in the cases no. KI 76/10, KI 82/10, KI 83/10, KI 102/10, KI 111/10, KI 122/10, KI 127/10, KI 11/11, KI 15/11, KI 18/11, KI 45/11, KI 47/11, KI 48/11, KI 50/11, KI 57/11, KI 60/11, KI 69/11, KI 71/11, KI 73/11, KI 75/11, KI 79/11, Applicant Ilaz Halili and 20 other former employees of the Kosovo Energy Corporation, against individual judgments of the Supreme Court of the Republic of Kosovo, Ref. no. AGJ 181, dated 27 December 2011.
- 8.
Judgment in the cases no. KI 132/10, KI 28/11, KI 82/11, KI 85/11, KI 89/11, KI 100/11, KI 104/11, KI 109/11, KI 118/11, KI 123/11, KI 142/11, KI 143/11, KI 144/11, KI 154/11, KI 01/12, KI 02/12, KI 14/12, Applicants Istref Halili and 16 other former employees of the Kosovo Energy Corporation, against individual judgments of the Supreme Court of the Republic of Kosovo, Ref. no. AGJ 309/12, of 01 October 2012.
- 9.
The Constitutional Court references upon decided cases by ECtHR: Judgment in the case Akdivar v. Turkey judgment of 16 September 1996; judgment in the case of Pressos Compania Naviera S.A. v. Belgium of 20 November 1995, para. 27; Radio France c. France, no. 53984/00, decision of 23 September 2003, para. 33 and see, mutatis mutandis, Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, p.511, para. 41.
- 10.
Judgment Case no. KI 06/10, Applicant Valon Bislimi vs. Ministry of Internal Affairs, Kosovo Judicial Council and Ministry of Justice, (the case was referred upon decided cases by ECtHR, as it mentioned: “see, mutatis mutandis, Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, p. 511, para. 41); Judgment in the case KI 32/10, Applicant Fahrudin Megjedoviq, Deputy Chairperson for Communities of the Municipal Assembly of Peja, Constitutional review of the Decision of the Municipal Assembly of Peja appointing the Deputy Mayor of Municipality for Communities, dated 15 February 2010. Apart from this, there were three judgments of the Constitutional Court of the Republic of Kosovo where no violations of human rights and freedoms were found in these individual cases KI 39/9, KI 55/09 and KI 09/10. For more, see Bulletin of Cases of the Constitutional Court for year 2009–2010 and Bulletin of Cases of the Constitutional Court 2011.
- 11.
- 12.
Law no. 2/L-28, on Administrative Procedure, Official Gazette of the Provisional Institutions of Self-Government in Kosovo, dated 1 January 2007. For more, see Articles 126, 127. Article 126 provides: “Natural and legal persons are entitled to request revocation, abolishment or modification of administrative act in compliance with the rules for administrative appeal set out under this Law. The entitlement referred may be exercised through a request for redress or review submitted to the person responsible for the act, or through appeal sent to higher bodies.
- 13.
Law on Independent Oversight Board of the Civil Service of Kosovo, no. 03/L-192, 16 August 2010. For more, see Articles 12, 13 and 14.
- 14.
On the use of right of appeal against an administrative decision at first instance, see cases referred to the Constitutional Court of the Republic of Kosovo, namely: paragraph 16, case 55/11; paragraph 11, case KI 81/10; paragraphs 9–11 of case 120/11; paragraphs 12, 14, 15, 16, case 129/11; paragraph 9 case KI 04/12. The case challenging a final administrative decision, see case 120/11, paragraphs 12 and 21.
- 15.
Report on the Administrative Justice System in Kosovo, April 2007 – Organization for Security and Co-operation in Europe Mission in Kosovo.
- 16.
Law on Courts, no. 03/L-199, 22 July 2010, superseding the Law on Regular Courts of the SAPK, UNMIK Regulations and Law on Minor Offences; Upon the entry into force of this Law any reference in any Law, regulation, directive, rule or other act vesting first instance jurisdiction in the Minor Offenses Court, Municipal Court, District Court, Commercial Court, or Supreme Court shall be construed to mean the Basic Court. Any reference in any Law, regulation, directive or rule vesting second instance jurisdiction in the High Minor Offenses Court, District Court, or Supreme Court shall be construed to mean the Court of Appeals; the Law entered into force on January 1, 2011 for Articles 29, 35, 36 38 and 40, while for other Articles it shall begin to be implemented from January 1, 2013
- 17.
Decisions of the Supreme Court of Kosovo: Decisions: A.no. 678/2010, 23.02.2011; A. no. 1029/2009, 27.05.2012; A.no. 2898/2010, 23.02.2011; A.no. 11/2010, of 23.02.2012 and Judgments: A. no. 2504/2007. 27.02.2009; A.no. 2376/2007, dated 26.08.2009 and A.no. 551/2011. For more, see Report on the Administrative Justice System in Kosovo, April 2007, Legal System Monitoring Section, Department of Human Rights, Decentralization and Communities, Organization for Security and Co-operation in Europe Mission in Kosovo, for remarks and criticism in the operations – namely decisions of the Supreme Court related to labour disputes involving civil servants. It also states that there are contradictory judgments, and failure to observe the principle of resolution of cases in a reasonable timeline, pp. 19–20.
- 18.
See unenforced decisions of the IOBCSK, related to disputing of court decisions, in cases KI 81/10, KI 55/11, KI 120/11, KI 129/11, KI 140/11, all cases decided by the Constitutional Court by the end of December 2012, while KI 80/12 and KI 112/12, left to be reviewed in 2013. One of the cases demanding review of Judgment of the Supreme Court A.no. 551/11, of 20 June 2011, by referral filed by the Ministry of Health, in the case 120/11, it was proposed also that the Constitutional Court of the Republic of Kosovo review the constitutionality of the Law on the Independent Oversight Board of Kosovo, no. 03/L-192, concretely Articles 13 and 14.
- 19.
See Decisions of the Supreme Court quoted. Decisions when the Supreme Court of Kosovo declares incompetent to decide on the claim of claimant against the decision of the Independent Oversight Board of Kosovo, thereby transferring the case to the Municipal Court, and judgments in which this court approves the claims, thereby annulling decisions of the Independent Oversight Board of Kosovo, and reviews and adjudicates these cases as a competent court.
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Shala, A.R. (2016). Fundamental Rights Protection in a New Constitution: The Example of Kosovo. In: Arnold, R. (eds) The Convergence of the Fundamental Rights Protection in Europe. Ius Gentium: Comparative Perspectives on Law and Justice, vol 52. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-7465-9_9
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