Constitutional Court

KI90/17, Applicant “Elektromotori Sh. A”, constitutional review of Decision AC-I-17-0204 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, of 6 July 2017

KI90 / 17, Resolution on Inadmissibility, 12 March 2018, published on 7 June 2018

Key words: Individual referral, civil procedure, property right, manifestly ill-founded

The Applicant requested from the Court the constitutional review of the Decision of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, which upheld the Decision of the Specialized Panel of that court, which rejected the request for issuance of a preliminary court injunction (PI – interim measure), by which the Privatization Agency of Kosovo (PAK) would be prohibited from selling the disputed property until the final decision, and for which the claimant by claim requests the recognition of the property right.

The Applicant alleged a violation of Article 46 of the Constitution, namely the right to protection of property, claiming that he is the owner of the disputed property and, as evidence, along with the claim, attached several administrative decisions of the Municipality of Gjakova of 1985, 1986 and 1989, by which the Municipality of Gjakova allowed that in the disputed property is built a kindergarten for the children of its workers. That property, the Applicant claims to have used in good faith for more than 20 (twenty) years, therefore he has acquired the right of ownership on the basis of the acquisition by prescription.

The Court found that the Applicants’ Referral was inadmissible on constitutional basis, reasoning that it is not a fourth instance court and does not deal with the determination of facts or eventual legal errors, whereas, as such they are not indicative of constitutional violations . In the circumstances of the case, when the Applicant failed to sufficiently substantiate the allegations of constitutional violation, the Court declared the Referral inadmissible as manifestly ill-founded.

The Court reviewed the Applicant’s allegations and broadly elaborated the general principles of the property right under the ECtHR case law and found, inter alia, that no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the Applicant’s submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia, paragraph 50 of the Judgment of the ECtHR, of 28 September 2004).

The Court also found that in the circumstances of the present case when the Applicant challenges the decision not to apply the PI – interim measure and when the question of the owner of the property of the disputed property has not yet been resolved by a final court decision,  unanimously finds that there has not been a violation of Article 46 of the Constitution and Article 1 of Protocol 1 of the ECHR and that the Referral is manifestly ill-founded on constitutional basis.