The deceased victim D.K. met her partner A.J. in secondary school, formed a union with him, and gave birth to a daughter. D.K. subsequently filed a claim to dissolve the union and for child custody at the Municipal Court because of a deterioration in her relationship with A.J. She also took their daughter to live with her parents. Following continuous threats by A.J., D.K. submitted a request to the Municipal Court for an emergency protection order under the Law on Protection from Domestic Violence. The court did not act within the statutorily mandated 24 hours of the request, and A.J. shot and killed D.K. several weeks later. The Kosovo Judicial Council (“KLJ”, the body which administers the judiciary) disciplinary committee issued a decision to discipline the responsible Municipal Court judge in response to a request by the Office of the Disciplinary Counsel, but D.K.’s parents were not party to the disciplinary proceedings. D.K.’s parents submitted a referral to the Constitutional Court, alleging the Municipal Court by its inaction violated D.K.’s rights under the Constitution of Kosovo, including Article 25 (Right to Life), Article 32 (Right to Legal Remedies), and Article 54 (Judicial Protection of Rights), as well as under the European Convention on Human Rights (“ECHR”), including Article 2 (Right to Life) and Article 13 (Right to Effective Remedy). The Constitutional Court observed that ECHR caselaw stresses that it is the duty of state authorities to take appropriate steps to safeguard the lives of those within its jurisdiction. This includes a positive obligation on the authorities to take preventive measures to (i) protect one whose life is at risk from another, (ii) where the authorities knew or ought to have known of the existence of a real and immediate risk to the life of an identified individual from a criminal offense, but (iii) failed to take measures which reasonably might have been expected to avoid the risk. The court found the Municipal Court ought to have known about the real risk in existence when D.K. requested the emergency protection order since she had explained the deterioration of her relationship with A.J., specifically his death threats and her reports to the police. Furthermore, the Municipal Court was handling D.K.’s case for the dissolution of union and child custody. Accordingly, the tribunal concluded that the Municipal Court was responsible for acting under the Law on Protection from Domestic Violence and that its inaction was a violation of Article 25 of the Constitution and Article 2 of the ECHR. The court also found that the Law on Protection from Domestic Violence and the statute governing the judiciary do not offer effective legal remedies for the protection of the applicants’ rights, because the former does not contain measures for addressing court inaction, and the latter does not allow the applicants to participate in any disciplinary investigation or procedure. Thus, the inaction of the Municipal Court and the KJC’s practice of not addressing judicial inaction violated the deceased’s and applicants’ right under Articles 32 and 54 of the Constitution and Article 13 of the ECHR. (Also available in Srpski and English.)
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