THE LIMITATIONS OF THE PROCEDURAL FAIRNESS: THE CONSTITUTIONAL COMPLAINT AS AN EFFECTIVE REMEDY IN PRACTICE AND LAW

Sažetak

So it happens that even though the requirements of procedural fairness may be complied with fully by the courts the end result is still manifestly unreasonable and does not redress the violation of substantive rights. The reason for such shortcoming of procedural fairness might be manifold and boil down to a question of bad law to which judges are no doubt bound, mechanical application of the law, excessive formalism in application and interpretation of the law and failure by the ordinary courts to engage in a holistic assessment of individual complaints. In this paper I shall expound upon the role of constitutional complaint as an effective remedy pertinent to individuals who have an arguable claim on a violation of their substantive rights guaranteed by the ECHR and the Constitution alike. The analysis shall examine decisions of public authorities including the ordinary courts in relation to a recent constitutional complaint where the Constitutional Court of the Republic of Kosovo found a violation of the right to privacy and of family life in addition to the violation of the right to an effective remedy. There shall also be an analysis of the relevant case-law of the European Court and how that case-law impacted the approach and rationale of the Constitutional Court.