The Constitutional Relevance of the ECHR in Domestic Law: The Kosovo Perspective

Abstract

This article examines the status and importance of the European Convention on Human Rights (ECHR) and European Court of Human Rights (ECtHR) Jurisprudence in the national legal system of the Republic of Kosovo. This will be accomplished by pursuing two main paths: first, by a doctrinal analysis of the constitutional status of the ECHR and the Jurisprudence of the ECtHR in Kosovo and, second, through a closer examination and analysis of specific cases as to the level of their (non) implementation by the Constitutional Court and regular courts of Kosovo. Even though Kosovo is not a member of the Council of Europe and has not ratified the ECHR, the ECHR has a specific and privileged place in the legal system of Kosovo and is part of its constitution. This makes Kosovo a very special case regarding the technique chosen for the incorporation of international instruments for human rights in its internal legal order. Public authorities in Kosovo agree to the obligation that the scope and meaning of fundamental rights should always be determined based on the standards established in Strasbourg. However, implementing these Strasbourg-derived standards is not simple or easy. Some of the elements identified for the application of these standards in internal judicial practice include the degree and measure of implementation, the methodology of choosing cases, the methods of interpretation, and local legal culture. This article, explains these elements by analyzing statistical data and specific court cases.