- The Constitutional Court
KI150/16, Applicant, Mark Frrok Gjokaj, Constitutional review of Decision CLM. No. 11/2016 of the Supreme Court of the Republic of Kosovo, of 13 September 2016
Case No. KI 150/16
KI150/16, Judgment of 19 December 2018, published on xxxxxx
Keywords: Individual referral, right to fair and impartial trial, res judicata, admissible referral, non-violation of constitutional rights
On 13 September 2016, the Supreme Court of Kosovo, by Decision [CLM. No. 11/2016], rejected as ungrounded the request for protection of legality of the State Prosecutor against the Decision [AC. No. 1579/015] of 4 April 2016 of the Court of Appeals of Kosovo, which considered as completed the enforcement proceeding, due to absolute statutory limitation, and all the actions taken in this enforcement case were repealed.
The Applicant, in his Referral, alleged that Decision [AC. No. 1579/2015] of 4 April 2016 of the Court of Appeals was rendered in violation of his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution.
In essence, the Applicant alleges that the Court of Appeals exceeded the legal powers established in Article 52 of the Law on Enforcement Procedure, modifying the Decision of the Basic Court in Gjakova [PPP. No. 50/2015] of 2 April 2015, considering the enforcement procedure as completed and annulling all preliminary actions regarding Decision [C. No. 270/96], of 25 December 1996, of the Municipal Court in Gjakova, which granted the interim measure.
The Court considered that the course of the present case involved extraordinary circumstances, including final decisions and contradictory to each other, of the same court in the same enforcement case. Accordingly, in the circumstances of the present case, the annulment of all the preliminary actions taken in the enforcement case, including the previous decisions res judicata, is in function of “correcting judicial errors and errors of justice”. The deviation from their observance in the circumstances of the present case is justified and is necessary as a result of “the circumstances of a substantive and convincing character” as established by the ECtHR case law.
The Court found that the Applicant’s Referral was admissible and, having regard to the specific characteristics of the case, the allegations raised by the Applicant and the facts presented by him, the Court, based also on the standards set out in its case law and in the case law of the ECtHR, does not find that the right to fair and impartial trial guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR has been violated.
Mark Frrok Gjokaj
KI – Individual Referral
Article 31 - Right to Fair and Impartial Trial, Article 46 - Protection of Property