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
SUMMARY

The right to appeal as one of the fundamental human rights is foreseen by international legal acts and domestic legislation. In this scientific paper we have handled the right to appeal under article 6 (1) of the European Convention on Human Rights and Kosovo legislation, with special emphasis on contested procedure by including the appeal against judgment and the appeal against ruling, the... (see full summary)

 
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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)
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

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