Constitutional Court denies legal team’s request to review CBK regulation’s constitutionality over „unexhausted legal remedies“

Constitutional Court denies legal team’s request to review CBK regulation’s constitutionality over „unexhausted legal remedies“…

The request submitted by a team of lawyers in February of this year concerning the assessment of the constitutionality of the Regulation of the Central Bank of Kosovo, which entered into force in the same month, and practically banned the use of the dinar, was declared inadmissible by the Constitutional Court, it was announced today.

The request was submitted to the Constitutional Court on February 20 by a lawyer from Gnjilane, Vasilije Arsić. In addition to Arsić, it was drawn up by lawyer Dragutin Nenezić and professor at the Faculty of Law, Dušan Čelić.

In their request, it was first indicated that the Regulation is not in accordance with Articles 7, 11, 22, 23, 24, 25, 46, 49, 51, 57, 58, and 59 of the Constitution of Kosovo, as well as Article 16 of the Law on Central Bank of Kosovo.

The lawyer’s main complaint concerned Article 35 of the CBK Regulation, which stipulates the euro as the sole currency for cash transactions and payment systems in Kosovo in the sense of „Article 11 of the Constitution of the Republic of Kosovo and Articles 16, 17 and 18 of Law no. 03/L-209 on the Central Bank of the Republic of Kosovo“.

By applying Article 35 of the regulation, they pointed out in the request, that basic human rights are violated – to property, work, profession, health, and social protection. In addition, the application of the same article is discriminatory, they stressed, especially because there was no consultation with the Serbian community regarding the issue.

At the same time, the lawyers stressed that this regulation contradicts the constitutional regulation that the issue must be clearly regulated by law, and not by an act of the CBK.

The lawyers also indicated that the UNMIK regulations have not yet been repealed, and they requested that the decision of the CBK be suspended until the final decision of the Constitutional Court.

Constitutional Court: Request inadmissible, legal remedies have not been exhausted

More than four months after this request was submitted, the Constitutional Court decided to declare it inadmissible and reject the request to suspend the implementation of the CBK Regulation.

„The Constitutional Court of the Republic of Kosovo has made a decision in connection with the request in case KI42/24, submitted by Vasilije Arsić, for the evaluation of the constitutionality of the Regulation of the Central Bank of the Republic of Kosovo on cash operations from February 1, 2024, submitted to the Court on the basis of paragraph 7 of Article 113 – jurisdiction and authorized parties of the Constitution of the Republic of Kosovo. The court unanimously determined that the request be declared inadmissible and therefore rejected the request for the introduction of an interim measure, i.e. the suspension of the implementation of the aforementioned Regulation of the Central Bank of the Republic of Kosovo,“ the Constitutional Court announced today.

They justified their decision to reject Arsić’s request by claiming that he had not exhausted available legal means. In other words, he did not reach out to the lower court instances, before addressing the Constitutional Court.

„The legal remedies prescribed by law have not been exhausted. The Court’s ruling on inadmissibility highlights the Court’s consolidated jurisprudence in the context of the constitutional obligation to exhaust legal remedies, including with regard to challenging by-laws. The decision reiterates that, based on the Constitution of the Republic of Kosovo, individuals can initiate proceedings if their rights and freedoms guaranteed by this Constitution have been violated by public authorities, but only when they have exhausted all other legal remedies, regulated by law. The ruling on inadmissibility points out that the exhaustion of legal remedies is a constitutional and legal obligation, and in addition to the individual’s obligation to exhaust available legal remedies, it also specifies the limitations of the competence of the Constitutional Court in relation to regular courts, which, based on the principle of subsidiarity, have the authority to consider claims of individuals on violation of their fundamental rights and freedoms.“

They underlined that there are exceptions to this practice, that according to the practice of the European Court of Human Rights, an individual can turn to the Constitutional Court first, but with clear arguments that there is no other relevant means or if all others have been exhausted, but also if they were possibly not effective.

„In the circumstances of the specific case, the applicant emphasized that there is no legal remedy available to challenge the legality and constitutionality of the aforementioned Regulation of the Central Bank of the Republic of Kosovo. However, the applicant did not present any argument before the Court, which is why the above-mentioned legal means are not effective, available and/or affordable in the circumstances of his case,“ the Constitutional Court said.

The Constitutional Court also stressed that the Central Bank of Kosovo is the only monetary authority that can make the decision for the euro currency to be the only one allowed to be used in Kosovo.

Nenezić: The timing for the final decision of the Constitutional Court is very telling, we will not stop with this

One of the applicants of this request, Dragutin Nenezić, said that the Constitutional Court has rushed to issue a statement ahead of tomorrow’s meeting in Brussels.

„They rushed to announce the decision before tomorrow’s meeting in Brussels. I assume that there will be something related to this topic, and that’s why they did it,“ he said in a statement to KoSSev.

„My guess is that the timing of the announcement is very telling. We’ll see what will happen tomorrow. I think that their arguments are stupid because first of all there is the practice of the Constitutional Court, which we referred to, regarding the exhaustion of legal remedies, but we will talk about that later when we see what the decision specifically states.“

He refused to give any other comment, considering the fact that the Constitutional Court has published only a press release, not the decision itself, which will be delivered later.

„Regarding that procedural part, they also mention in detail how the Central Bank is the only one competent to regulate the issue of currency use, which is not true – it is regulated by law,“ emphasized Nenezić.