Zagreb Law Review, Vol. 11 No. 2, 2022.
Review article
LIMITATIONS OF PROCEDURAL FAIRNESS: THE CONSTITUTIONAL COMPLAINT AS AN EFFECTIVE REMEDY IN PRACTICE AND LAW
Bardh Bokshi
Abstract
Even though the conduct of fair proceedings is very important, it does not necessarily lead to a fair outcome of the given proceedings. Thus, fair proceedings must be complemented by a fair substantive outcome in order to render basic rights practical and effective. The reason for such a shortcoming of procedural fairness might be manifold, but it essentially boils down to the mechanical application of the law, excessive formalism in the application and interpretation of the law, and a failure to go beyond mere appearances and assess the realities of the situation complained of. In this paper, I expound on the role of the constitutional complaint as an effective remedy pertinent to individuals who have an arguable claim regarding a violation of their substantive rights guaranteed by the ECHR and the Constitution alike. This paper analyses a ruling of the Constitutional Court of Kosovo where it found a violation of the right to privacy and family life and the right to an effective remedy, notwithstanding the fair conduct of the proceedings. I will also show the impact of the relevant case law of the European Court on the approach and rationale of the Constitutional Court.
Keywords
Hrčak ID:
303977
URI
Publication date:
13.6.2023.
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