The right to appeal on contested procedure under the Republic of Kosovo legislation

• Author: Rrustem Qehaja - Arbnor Ajeti
• Position: Rrustem Qehaja - Faculty of Law, University of Prishtina, Kosovo, rrustem.qehaja@uni-pr.edu. Arbnor Ajeti - Faculty of Law, University of Prishtina, Kosovo, arbnor.ajeti@yahoo.com.
• Pages: 148-164

The right to appeal on contested procedure

under the Republic of Kosovo legislation

Associate professor Rrustem QEHAJA1

PhD. student Arbnor AJETI2

Abstract

The right to a ppeal a s one of the fundamental human rights is foreseen by

internatio nal legal acts a nd domestic legislation. In this scientific paper we have handled

the r ight to a ppeal under article 6 (1) of the European Convention on Human Rights a nd

Kosovo legislation, with special emphasis on contested procedur e by including the appeal

aga inst judgment a nd the appeal against ruling, the grounds o f a ppeal a gainst judgment

and limitation of appeal grounds a gainst severa l judgments. All those a bovementioned

matters a re the main object of review in this scientific pa per. Handling the right to a ppeal

aga inst the first instance court judgment is important also due to the fact that in Kosovo

accord ing to the new Law on C ourts as a competent court to review a nd decide on a ppeal

submitted by the appellant is the Court of Appeals as a second instance court. In this

scientific paper we ha ve used normative, deductive, descriptive methods. At the end of this

scientific paper there ar e conclusions in rela tion of the right to ap peal with special

emphasis on contested procedur e.

Keywords: the r ight to appea l, the Europea n Convention on Human Rights, Kosovo

legislation, contested pr ocedure, judgment, court.

JEL Classification: K40, K41.

1. Introduction

It is important to analyze and review the right to appeal on contested

procedure by bearing in mind the fact that the main goal of appellant is the appeal

submitted against the first instance court decision to be reviewed by the second

instance court, due to the fact the appellant claims that he has been denied or

violated any right by the first instance court decision. Furthermore, the right to

appeal is guaranteed through international legal acts and domestic legislation

applicable. The fact itself that the party submits an appeal, it gives us the

impression that the party consider that it has been denied the realization of any

certain right recognized by applicable legislation. Since, the right to appeal is one

of the most fundamental human rights, in this scientific paper we have handled the

right to appeal under article 6 (1) of the European Convention on Human Rights of

1950 (hereinafter ECHR). Also, there has been handling for the right to appeal

according to Kosovo legislation by including reviews according to Constitution of

the Republic of Kosovo of 2008 (hereinafter the CRK), the Law no. 03/L-006 on

1 Rrustem Qehaja - Faculty of Law, University of Prishtina, Kosovo, rrustem.qehaja@uni-pr.edu.

2 Arbnor Ajeti - Faculty of Law, University of Prishtina, Kosovo, arbnor.ajeti@yahoo.com.

Juridical Tribune Volume 8, Special Issue, October 2018 149

Contested Procedure of 2008 (hereinafter LCP) and other legal acts. Having in

mind the fact, the handled topic in this scientific paper is related with special

emphasis of the right to appeal on contested procedure, there has been handling

according to LCP, which is a special law concerning this procedure.

In this scientific paper in addition of the right to appeal under Article 6 (1)

of the ECHR, also it has been handled the right to appeal on contested procedure

according to Kosovo legislation, by making specific reviews concerning the appeal

against judgment and the appeal against ruling, grounds of appeal against

judgment, where with special emphasis have been handled essential violations of

contested procedure provisions, what are absolute essential violations and

substantive essential violations and then cases dealing with incorrect or incomplete

finding of factual state, cases dealing with incorrect application of substantive law

and what are various types of judgments which cannot be appealed for all the

appeal grounds foreseen under LCP. Their handling is very significant having in

mind the fact in cases when the parties have disagreements related to particular

matters of legal-civil nature, and those disagreements cannot be resolved through

alternative procedures for dispute resolution then the parties seek for judicial

protection of their rights on contested procedure.

Also, these reviews have been made based on the Law on Kosovo Courts

No. 03/L-199, which entered into force on January 1, 2011 for Articles 29, 35, 36,

38 and 40, while for other articles it has begun to be applicable starting from

January 1, 2013. Article 8, paragraph 1 of this Law foresees as following “The

court system of the Republic of Kosovo consists of: Basic Courts, The Court of

Appeals and The Supreme Court”. Hence, in Kosovo there is a new regulation of

judicial system. Based on this Law on Courts, there is a Basic Court as a first

instance court, Kosovo Court of Appeals with its headquarters in Prishtina as a

second instance court and The Supreme Court as the highest judicial instance in

Kosovo. Therefore, shall be handled the right to appeal under Article 6 (1) of the

European Convention on Human Rights and under Kosovo domestic legislation by

making a thorough handling in order matters related to the right to appeal on

contested procedure to be analyzed in a concrete manner.

2. The right to appeal under article 6 (1)

of European Convention on Human Rights

The right to appeal as one of the basic human rights is foreseen by article 6

(1) of the European Convention on Human Rights of 1950 which states as

following: “In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public hearing within

a reasonable time by an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and public may be excluded

from all or part of the trial in the interests of morals, public order or national

security in a democratic society, where the interests of juveniles or the protection

of the private life of the parties so require, or to the extent strictly necessary in the