Constitutional Court

The Applicant filed the Referral in accordance with Article 113.7 of the Constitution of Kosovo, challenging the Resolution of the District Court in Gjilan GŽ no. 78/2010 of 7 June 2010. The Applicant has alleged that the Judgments: P. posl. no. 36/2000 of the Municipal Court in Kamenica of 26 September 2000, GŽ no. 10/2001 of the District Court in Gjilan of 23 April 2001, rev. no. 141/2003 of the Supreme Court of Kosovo in Prishtina 30 December 2004 and the Decisions: P. posl. no. 36/2000 of the Municipal Court in Kamenica of 11 January 2010 and GŽ no. 10/2001 of the District Court in Gjilan of 7 June 2010 have violated his right to enjoy personal property and the right to legal certainty as there is a duality of judicial and administrative decisions.
The Applicant has requested from the Constitutional Court to confirm Decisions no. HPCC/D/194/2005/C of 18 June 2005 and no. HPCC/REC/66/2006 of 15 July 2006 rendered by HABITAT and by which it was ordered that the property at issue be returned in his possession. The Applicant has considered that the decisions of Habitat are final and binding and therefore should be recognized. He alleges that the abovementioned Judgments violated his right to enjoy the personal property and the right to legal certainty.
The Applicant has considered that Article 46 (Protection of Property) of the Constitution of Kosovo and Article 1 (Right to Property) of Protocol 1 of ECHR.
Deciding in the Referral of the Applicant Draža Arsić, the Constitutional Court after reviewing the proceedings in their entirety found that the Applicant’s Referral is admissible. The Court is of the view that the Decision HPCC/REC/66/2006 of 15 July 2006 is final in accordance with Article 2 paragraph 7 of UNMIK/Regulation/1999/23, and consequently it cannot be subject of review by any other judicial or administrative authority in Kosovo. Since the HPCC Decision of 15 July 2006 became res judicata on 4 September 2006, the Applicant has enjoyed the right to possess the property, guaranteed by Article 46 of the Constitution and Article 1 of Protocol 1 of ECHR and the Court concluded that any interference of this right by any court or any administrative body would have to be considered as a violation of that right, Based on all the foregoing, the Court held that there had been a violation of the Applicant’s rights, that the decision HPCC/REC/66/2006 of 15 July 2006 had become res judicata on 4 September 2006 and therefore there had been a violation of the right to property, provided for by Article 1 Protocol 1 of the ECHR. The Court finally concludes that the courts as well as the administrative authorities concerned were held to take due account of the proceedings under UNMIK Regulation 1999/23 before the HPD and HPCC, in which the Applicant was involved, and to enforce their decisions.