- The Constitutional Court
KI204/18, Applicant, Šemsidin Bilibani, constitutional review of Decision Gzh. No. 476/15 of the Court of Appeals of Kosovo, of 16 December 2016
KI204/18, Resolution on Inadmissibility of 27 February 2019, published on 29 March 2019
Keywords: Individual referral, enforcement based on the credible document, objection, referral out of time
The Applicant concluded with the lawyer B.A. (hereinafter: the creditor) the contract for the performance of the lawyer’s services (hereinafter: the contract) for the realization of the inheritance right from the hereditary estate of his predecessor. In this respect, the creditor submitted to the Basic Court in Prishtina the proposal for enforcement of the credible document, invoice No.1-2013, for the compensation of a certain amount of money, in connection with the implementation of the contract.
Based on the abovementioned proposal, the Basic Court rendered Decision [CP. No. 1509/13] of 3 September 2013, for the approval of the proposal for enforcement of the credible document – invoice No.1-2013. Against this Decision, the Applicant filed an objection. Upon the submission of the objection, the Basic Court by Decision [CP. No. 1509/13] of 23 December 2013, decided to consider the proposal for the enforcement of the credible document as a lawsuit. Following the creditor’s appeal, the Court of Appeals by the Decision [CA. No. 751/14], annulled the Decision [CP. No. 1509/13] of the Basic Court and remanded the case for retrial to the Basic Court.
The Basic Court rendered the Decision [PI. No. 1316/15], which rejected as out of time the Applicant’s objection against the Decision [PI. No. 1509-13]. The Applicant filed an appeal with the Court of Appeals against the abovementioned Decision. On 16 December 2016, the Court of Appeals by the Decision [CA. No. 476/15] rejected as ungrounded the Applicant’s appeal and upheld the Decision of the Basic Court [PI. No. 1316/15].
The Applicant alleges before the Constitutional Court that the Court of Appeals violated his rights guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 32 [Right to Legal Remedies] of the Constitution, because, according to him, against Decision Pl. 1509/13 of the Basic Court of 3 September 2013, he filed the objection within the legal time limit but the staff of the Basic Court in the copy of the objection did not set the date of receipt 4 December but the date 6 December 2013.
The Court notes that the Applicant challenges the Decision [Gzh. No. 476/15] of the Court of Appeals of 16 December 2016, which according to him, was served on him on 9 August 2017. The Court further notes that the Applicant had submitted his Referral to the Post Office of Kosovo on 17 December 2018, which the Court received on 27 December 2018.
Therefore, the Applicant’s Referral was filed out of the legal time limit established in Article 49 of the Law and Rule 39 (1) (c) of the Rules of Procedure, and as such is inadmissible.
KI – Individual Referral