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Direct Applicability of the European Convention of Human Rights in Kosovo: The Successes and Challenges in Implementing Strasbourg Standards

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I. Introduction 

The CCK as the youngest court of such nature in Europe was established after Kosovo declared its independence in 2008. The role of this court was to become a guardian of the Constitution of the Republic of Kosovo (the Constitution) but it would be set in motion only when requested so by authorized parties as stipulated in Article 1131 of the Constitution. Accordingly, the CCK ought to represent a legal remedy as final authority for all those individuals who claim violation of human rights and freedoms by public authorities. The constitutional provisions that lay down the foundation for individual constitutional complaint are Articles 222, 533 and 113.74 of the Constitution.

II. Temporal jurisdiction of the CCK

In Case no KI19/215, the CCK found a violation of the right to a fair trial due to excessive length of proceedings. However, the CCK held that it does not have temporal jurisdiction to assess the applicant’s allegation for the period starting from 2 November 2000 until 25 January 2005. The CCK asserted that the Constitution entered into force on 15 June 2005, therefore all allegations about violation of fundamental rights and freedoms regarding the above-stated period must be rejected as incompatible ratione temporis with the Constitution6. The CCK relied on the ECtHR case Blecic v. Croatia7 where it was held that the case of the applicant became res iudicata by virtue of judgment of the Supreme Court of Croatia on 15 February 1996 which was before the ECHR entered into force with respect to Croatia. Nevertheless, the ECHR was introduced into Kosovo’s legal system by UNMIK Regulation 1999/248 on 12 December 1999 on the applicable law in Kosovo. Furthermore, in 2001 UNMIK and Kosovo authorities adopted the ‘Constitutional Framework for Provisional Self-Government in Kosovo’ which further tied Kosovo’s institutions-including courts-to the ECHR. One must bear in mind that CCK is a domestic court with specialized jurisdiction as opposed to the ECtHR which is an international court with jurisdiction to adjudicate on alleged violations of basic human rights and freedoms by the States that are Contracting Parties to the ECHR9. The situation with the temporal jurisdiction of the CCK is rather different because the latter is a domestic court which should determine its temporal jurisdiction with the view to the specific context of Kosovo. Thus in Case No. KI19/21 the CCK did not appreciate the fact that ECHR was obligatory to the courts in Kosovo since 1999 and went on to assess its own temporal jurisdiction analogous to the ECtHR approach, thus taking no notice of the specific context of Kosovo. Admittedly, the CCK in case no KI19/21 found a violation due to excessive length of proceedings but it did so by omitting to assess the applicant’s allegations for the period 2000 until 2005. Instead, the CCK determined its temporal jurisdiction based on the post-independence Constitution which entered into force in June 2008, very much akin to the ECtHR approach determining that ECHR applies from the date it enters into force with respect to a Contracting Party10.

III. Equality of arms and declaratory nature of decisions

In Case no. KI209/1911, the applicant had a favorable decision by the trial court-which on appeal-was set aside by the appellate court. The appellate court on the basis of appeal by the opposing party held a hearing, however without informing the applicant that a hearing is due to be held in his case. The CCK found that the failure to summon the applicant at the hearing meant that the latter was not given an opportunity to reply-and was thus-was disadvantaged vis-à-vis the opposing party in breach of equality of arms. The CCK remanded the case for reconsideration in compliance with its finding of a violation of the principle of equality of arms12 as well as in keeping with the principle restitutio in integrum and effectiveness13 which permeates all ECHR provisions.  

Equally, in Case no. KI105/2414, the CCK found that the failure of the appellate court to notify the applicant about the reply-to her appeal-by the respondent party was in breach of equality of arms because the applicant was placed at disadvantage vis-à-vis the respondent party15. However, the CCK did not remand the case for retrial because it deemed that the violation found was of a ‘declaratory nature’16. By finding that there is no need to remand the case back to ordinary courts for reconsideration owing to a violation of ‘declaratory nature’17, two key principles were not given due attention: (i) principle restituio in integrum, and (ii) the principle of effectiveness of basic human rights and freedoms. Those principles mean that whenever a violation of basic rights is found, the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the ECHR requirements18. There is no such thing as violation of ‘declaratory nature’ and by implication a ‘declaratory judgment’ that is ineffective. The ECtHR judgments are of a declaratory character with no direct effect on the internal law of the States19. The Committee of Ministers of the Council of Europe has a general duty to scrutinize all measures taken by the State concerned to execute a judgement of the ECtHR20. Furthermore, in exceptional cases, a State which refuses to implement a judgment of the ECtHR may have its membership to the Council of Europe suspended or terminated by the application of Article 8 in connection with Article 3 of the Statute of Council of Europe21. The corollary is that a declaratory judgment within the protection machinery of the Council of Europe institutions does not amount to an ineffective judgment. 

IV. The principle of effectiveness in action

In Case no. KI56/1822 the applicant endeavored without success to register the death of his son in the civil status registry. The applicant’s son had died in a Swedish hospital and his corpse was returned to Kosovo. The applicant sought to register the death of his son in civil status registry in Kosovo. The office of civil status refused to effect the registration of the deceased person due to mismatch of personal documents issued by Kosovo and Swedish authorities regarding the identity of the deceased person23. The applicant unsuccessfully pleaded before the ordinary courts that owing to non-effecting the registration of his deceased son, the latter’s widow and under aged son were left in a legal limbo with respect to their civil status24. In constitutional proceedings, the CCK found that the proceedings before the office of civil status and ordinary courts were characterized by excessive formalism because they had failed to take stock of the realities of the situation complained of25. The CCK noted that the courts had adjudicated the applicant’s case only through procedural safeguards afforded by article 6 of the ECHR, but they never did a balancing exercise through the prism of article 8 of the ECHR. The courts never showed why the non-registration of the deceased person was reasonable, proportional or that there was public interest involved as stipulated in paragraph 2 of article 8 of the ECHR. Put differently, was it really in the public interest that the widow and under aged son of the deceased person be permanently stuck with unregulated civil status? The CCK found a violation of articles 8 and 13 of the ECHR because the death of the applicant’s son was not registered for over seven years owing to excessive formalism on the part of the courts and the office of civil status26. This case illustrates a more robust application of the principle of effectiveness, emphasizing substance over form and aligning more closely with the ECtHR jurisprudence.

V. Conclusion 

In conclusion, it is worthwhile mentioning that direct constitutional integration of the ECHR has led to what some scholars have termed a ‘Strasbourgization’27 of the CCK jurisprudence. The other side of the coin, is that it has also created space for a potentially divergent interpretation – what might be called “Kosovarization” of the ECHR, owing to absence of review of decisions of public authorities by the ECtHR.   The effectiveness of human rights protection in Kosovo will ultimately depend on both the internal development of CCK jursiprudence and Kosovo’s future accession to the Council of Europe. Until then, the public authorities remain constrained by the lack of binding supranational review.

  1. Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo, Assembly of the Republic of Kosovo, Official Gazette of the Republic of Kosovo, Act number:  K-09042008, Published on 09.04.2008. Available at: https://gzk.rks-gov.net/ActDetail.aspx?ActID=3702. (Access 17 July 2025).
  2. Article 22 [Direct Applicability of International Agreements and Instruments].
  3. Article 53 [Interpretation of Human Rights Provisions].
  4. Article 113 (n 1).
  5. The Constitutional Court of the Republic of Kosovo, Case no. KI19/21, 18 July 2022. Available at: https://api.webgjk-ks.org/Custom/ki_19_21_agj_ang.pdf  (Access 17 July 2025).
  6. Case no. KI19/21 (n 5, paras. 59-62).
  7. Blecic v Croatia App no. 59532/00 (ECtHR, 8 March 2006) paras. 83-92.
  8. United Nations Interim Administration Mission in Kosovo (UNMIK) Regulation No. 1999/24 of 12 December 1999 on the Authority of the Interim Administration in Kosovo. Available at: https://unmik.unmissions.org/sites/default/files/regulations/02english/E1999regs/RE1999_24.htm (Access 18 July 2025).  
  9. Beti Hohler and Barbara Sonezyk. The Role and Impact of European Convention on Human Rights Beyond  State Parties: The curious case of ECHR in Kosovo. Theory and Practice of the European Convention on Human Rights, 2021 p 6. Available at:  https://www.nomos-elibrary.de/10.5771/9783748923503-261.pdf  (Access 17 July 2025).
  10. Blecic v Croatia (n 7).
  11. The Constitutional Court of the Republic of Kosovo, Case no. KI209/19, 5 November 2020. Available at: https://api.webgjk-ks.org/Custom/ki_209_19_agj_ang.pdf  (Access 17 July 205).
  12. Case no. KI209/19 (n 11 para. 66).
  13. N.D. and N.T. v. Spain App nos. 8675/15 and 8697/15 (ECHR 13 February 2020) para. 171.
  14. The Constitutional Court of the Republic of Kosovo, Case no.105/24, 26 November 2024. Available at: https://api.webgjk-ks.org/Custom/25a3aca7-b842-4530-89d7-d045b6b879ba.pdf  (Access 17 July 2025).
  15. Case no. KI105/24 (n 14 para 56).
  16. Case no. KI105/24 (n 14 para 57).
  17. The CCK did not explicitly explain what they mean by violation of ‘declaratory nature’, but such situation arises when CCK finds violation of fair trial but is not convinced that remanding the case for retrial would benefit the applicant. The CCK considers such situation to be a violation of ‘declaratory nature’.
  18. Kingsley v. the United Kingdom App no. 35605/97 (ECHR 28 May 2002) para. 40.
  19. European Commission for Democracy Through Law (Venice Commission), [Opinion on the Implementation of the Judgments of the European Court of Human Rights] [2002] (CDL-AD [2002] (34) ) [para. 34]. Available at: https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2002)034-e   (Access 17 July 2025).
  20. European Commission for Democracy Through Law (n 19 para. 42).
  21. Id., (n 19 para. 44).
  22. The Constitutional Court of the Republic of Kosovo, Case no. KI56/18, 22 July 2022.Available at:https://api.webgjk-ks.org/Custom/ki_56_18_agj_ang.pdf  (Access 18 June 2025).
  23. Case no. KI56/18 (n 22 para. 27).
  24. Id., (n 22 para. 34).
  25. Gorou v. Greece (no. 2)   App no. 12686/03 (ECHR 20 March 2009) para. 29.
  26. Case no. KI56/18 (n 22 para. 151).
  27. Fisnik Korenica and Dren Doli, Constitutional Rigidity in Kosovo: Significance, Outcomes, and Rationale, Pace Int’l L. Rev. Online Companion, Jan. 2011, p 26. Available at: https://heinonline.org/HOL/LandingPage?handle=hein.journals/piliewco2011&div=2&id=&page=  (Access 18 July 2025).
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