The Constitutional Complaint in Kosovo from the Perspective of State Liability and Constitutional Certainty

Abstract

Abstract This article analyses the constitutional complaint in Kosovo through the lens of governmental liability and constitutional certainty. Although it is one of the most significant legal mechanisms for the protection of human rights in Kosovo, the remedial impact of a constitutional complaint does not appear to be appropriate for granting ‘just satisfaction’ and holding a public authority accountable for a violation of constitutional rights. To make the state’s constitutional liability for human rights violations a reality, additional legislative reforms are necessary. The introduction of ‘constitutional damage’ award in the context of the Kosovan constitutional judiciary is therefore especially pertinent to this end. Such a remedy would hold the state accountable for abuses of human rights originating from the unconstitutional behavior of government officials. It would finally provide victims of constitutional rights violations with appropriate means of legal redress, which is the ultimate end of constitutional justice. The constitutional principle of ‘legitimate expectation’ is also not unimportant in this context. By offering a critical perspective on the Constitutional Court’s case-law, this article argues for the significance of adhering to the ‘legitimate expectations’ principle to ensure equality of the parties in constitutional litigation proceedings and a constant development of constitutional jurisprudence that is vital for the Kosovan democracy.