Taking Care of Strasbourg: The Status of the European Convention on Human Rights and the Case-Law of the European Court of Human Rights in Kosovo’s Domestic Legal System

• Published in: The Liverpool law review 2011-11, Vol.32 (3), p.209-223
• Main Authors: Korenica, Fisnik, Doli, Dren
• Format: Article
• Language: English
• Subjects: Criminology and Criminal Justice; Ethics; Human rights; International law; Law; Law and Criminology; Legal History; Philosophy of Law; Theories of Law
• ISSN: 0144-932X; 1572-8625
• DOI: 10.1007/s10991-011-9098-9

This paper addresses the position of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) case-law in Kosovo’s domestic legal order. To begin with, it reviews the background of the issue of human rights in Kosovo highlighting its distinct position and perspective. This article then analyses the position held by the European Convention on Human Rights and its protocols in Kosovo’s legal order while also addressing the ECHR’s constitutionalization, its direct effect and the constitutional review on basis of it. The paper then examines whether the case-law of the ECtHR is binding in Kosovo, whether it is directly effective, and whether Kosovo’s Constitutional Court can use it as a ground in the conduct of constitutional reviews. This paper argues that the ECHR and the case-law of the ECtHR both hold a privileged status under Kosovo’s constitutional law, despite Kosovo not being a party to the ECHR and, therefore, having no international liability to implement the ECHR. In addition, the paper offers certain arguments regarding the relative positions of the ECHR and the case-law of the ECtHR within the current practice of Kosovo’s judicial system. This paper concludes with the argument that the ECHR and the case-law of the ECtHR hold a privileged status in the context of Kosovo’s domestic legal order—one which could serve as a precedent in respecting human rights and freedoms.