Constitutional Court

KI55/18 Applicant: Jovan Jovanović, constitutional review of Judgment GSK-KPA-A-158/2015 of the Appeals Panel of the Supreme Court of Kosovo on Kosovo Property Agency Related Matters of 8 November 2017

KI55/18, Resolution on Inadmissibility of 28 May 2018, published on 12 June 2018

Keywords: individual referral, civil procedure, request for interim measure, manifestly ill-founded

The Referral is based on Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 27 [Interim Measures], Article 47 [Individual Requests] of the Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo (hereinafter: the Law) and Rule 29 [Filing of Referrals and Replies] and 54 [Request for Interim Measures] of the Rules of Procedure of the Court (hereinafter: the Rules of Procedure).

The Applicant alleges a violation of the rights guaranteed by Article 24 [Equality Before the Law], Article 31 [Right to Fair and Impartial Trial], Article 32 [Right to Legal Remedies] and Article 46 [Protection of Property] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution), and Article 6 (Right to a fair trial) and Article 1 of Protocol 1 (Protection of Property) to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the ECHR).

Having in mind the Applicant’s main allegations regarding violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, the Court finds that the KPA in Decision KPPCC/D/C/264/2014 found as an undisputed fact that the Applicant and SOE “Stan” signed a contract on joint construction of the business premise, which was the subject of the dispute, and that the contract contained the prescribed conditions as well as the modality of payment of the agreed price for the business premise in question.

However, the Court also notes that the KPA found that this contract was signed exclusively between the Applicant and the competent person, as a representative of the SOE “Stan”, in a form that is not prescribed by law.

Accordingly, the Court does not see arbitrariness in the given reasoning, and moreover, the Court notes that the Appeals Panel of the KPA examined all the allegations raised by the Applicant during the course of the regular proceedings, and provided clear conclusions as to why these allegations are ungrounded.

The Court further notes that the Applicant considers that the Judgment of the KPA Appeals Panel has also violated Article 46 of the Constitution in conjunction with Article 1 of Protocol 1 to the ECHR because “the Supreme Court has not considered or entered into the substance of the joint investment agreement which, in all its aspects, would has a character of a pre-contract, which after fulfilling obligations, would constitute a new contract, which would be certified before the court and obtain a legally final form.“

However, the Court notes that the courts in their decisions and the KPA Appeals Panel, found in the judgment that the Applicant could not acquire the right to the property in question as he failed to meet any of the specified conditions that would enable him to claim that he had acquired an ownership or co-ownership right over the business premise.

Therefore, the Court concludes that the Applicant’s Referral is manifestly ill-founded on constitutional basis and is to be declared inadmissible in accordance with Rule 36 (1) (d) and (2) (b) of the Rules of Procedure.

The Court also rejected the Applicant’s request for interim measure as ungrounded.