Ten Years on: The Exhaustion Principle and the Practice of the Constitutional Court of Kosovo as the Final Authority for Protection of Human Rights

• Author: Besfort T. Rrecaj & Bardh Bokshi
• Position: University of Prishtina 'Hasan Pristhina', Faculty of Law/Constitutional Court of Kosovo, Prishtina
• Pages: 25-35

Center for Open Access in Science ▪ https://www.centerprode.com/ojls.html

Open Journal for Legal Studies, 2018, 1(1), 25-36.

ISSN (Online) 2620-0619 ▪ https://doi.org/10.32591/coas.ojls.0101.03025r

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© Authors. Terms and conditions of Creative Commons Attribution 4.0 International (CC BY 4.0) apply.

Correspondence: Besfort T. Rrecaj, University of Prishtina “Hasan Prishtina”, Agim Ramadani Str. nn.

10000, Prishtina, KOSOVO. e-mail: besfort.rrecaj@uni-pr.edu.

Ten Years on: The Exhaustion Principle and the Practice of

the Constitutional Court of Kosovo as the Final Authority

for Protection of Human Rights

Besfort T. Rrecaj

University of Prishtina “Hasan Pristhina’’, Faculty of Law

Bardh Bokshi

Constitutional Court of Kosovo, Prishtina

Received 12 June 2018 ▪ Revised 10 July 2018 ▪ Accepted 18 July 2018

Abstract

Ten years after the establishment of the Constitutional Court of Kosovo, this paper aims to

examine the concept of exhaustion of legal remedies in Kosovo judicial syst em where an

individual has brought a case claiming violation of human rights guaranteed by the Constitution.

The paper will focus on analyzing what constitutes an effective legal remedy including ordinary

and extraordinary remedies for the purposes of submitting a constitutional complaint with the

Constitutional Court. This work is based on the case-law of the Constitutional Court and tries to

explain all legal steps that must be observed before submitting a constitutional complaint

regarding exhaustion requirement. Furthermore, it will delve deeper into this concept by

distinguishing the importance of formal and substantive exhaustion of legal remedies, the

interconnectedness of formal and substantive exhaustion of legal remedies and the distinction

between them as developed by the case-law of the Constitutional Court. It will conclude by

summarizing main characteristics of the concept of exhaustion of legal remedies in Kosovo as it

is established by the practice of the Constitutional Court.

Keywords: effective legal remedies, exhaustion of legal rem edies, extraordinary legal remedies,

formal and substantive exhaustion of legal remedies, the principle of subs idiarity.

1. Introduction

Before delving into the topic of exhaustion of legal remedies for the purposes of

submitting a constitutional complaint with the Constitutional Court of Kosovo (hereinafter, the

Constitutional Court), it is necessary to provide the constitutional and legal background which lay

down that requirement. Article 113.7 of the Constitution of Kosovo (hereinafter, the Constitution)

(Kosovo Constitution 2008 and its amendments) establishes that individuals must exhaust all

legal remedies to their availability before submitting a complaint with the Constitutional Court.

This requirement is further confirmed by Article 47.2 of the Law on Constitutional Court which

provides that individuals may submit a referral with the Constitutional Court only after they have

exhausted all legal remedies provided for by law (Law on the Constitutional Court of Kosovo). The

exhaustion of legal remedies ought to mean remedies that are not only available in formal terms

but also effective in providing a redress for an individual raising the complaint. Within this concept