Constitutional Court

KI169/18 , Applicant: Private Enforcement Agent Sefer Sh. Arifi, Constitutional review of Article 22 paragraph 3 of Law No. 05/L-118 on Amending and Supplementing Law No. 04/L-139 on Enforcement Procedure in conjunction with Article 247 of Law No. 04-L/139 on Enforcement Procedure

KI169/18, Resolution of 22 July 2019, published on 14 August 2019

Key words: unauthorized party

The Applicant filed the Referral with the Court in accordance with the procedure provided by Article 113, paragraph 8, of the Constitution (Incidental Control), requesting constitutional review of Article 22 paragraph 3 of Law No. 05/L-118 on Amending and Supplementing Law No. 04/L-139 on Enforcement Procedure in conjunction with Article 247 of Law No. 04-L/139 on Enforcement Procedure.

The Applicant alleged that application of Article 22, paragraph 3, of Law No. 05/L-118 on Amending and Supplementing Law No. 04/L-139 on Enforcement Procedure is in contradiction with Article 247 of the Law on Enforcement Procedure. This contradiction of articles, according to the Applicant i) discriminates against debtor as a party to the procedure because the debtor is significantly damaged materially and ii) as a consequence of this discrimination, it is anti-constitutional.

The Constitutional Court, taking into account the fact that the Applicant filed his Referral pursuant to Article 113, paragraph 8, of the Constitution, initially it considered whether the Applicant is an authorized party.

In this regard, the Court, by referring to the Constitution, the Law on Courts and the Law on Enforcement Procedure, emphasized that the Applicant is not “a court” and the fact that “actions in the enforcement procedure undertaken by the Court are legally valid as if they were taken by the Enforcement Agent which proceeds with the enforcement”, they do not imply that the Applicant is part of the judicial system.

In addition, the Court pointed out that the Constitution clearly defines that the judicial power in the Republic of Kosovo is exercised by the courts, and the Law on Courts establishes which courts compose the court system of Kosovo.

Consequently, the Court found that the current Referral has not been submitted by the “court” in terms of Article 113.8 of the Constitution, and as a result the Applicant is not an authorized party.