Constitutional Court

KI77/17, Applicant: Deputy Chairperson for Communities of the Municipal Assembly of Dragash, Constitutional review of Decision 01. no. 06-368/1 of the Municipal Assembly of Dragash, of 21 March 2012, and Decision 01. nr. 06-1281/1 of the Municipal Assembly of Dragash, of 8 August 2012

KI77/17, Resolution on Inadmissibility, of 22 July 2019, published on 29 August 2019

 Key words: Deputy Chairperson for Communities of the Municipal Assembly of Dragsh, referral based on paragraph 4 of Article 62 of the Constitution and Rule 79 of the Rules of Procedure, inadmissible referral based on Article 62 of the Constitution

The Applicant challenged Decision [01. no. 06-368/1] of the Municipal Assembly of Dragash, of 21 March 2012, and Decision [01 no. 06-1281/1] of the Municipal Assembly of Dragash, of 8 August 2012 (hereinafter: Municipal Assembly), whereby general public interest was declared and expropriation of a number of cadastral parcels was established for the purpose of building water pipes, entry roads and electricity power lines for the respective hydro power plants.

Before the Court, the Applicant alleged that these Decisions have violated fundamental rights and freedoms of the non-majority communities guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 46 [ Protection of Property], 52 [Responsibility for the Environment] and 58 [Responsibilities of the State] of the Constitution of the Republic of Kosovo.

When reviewing the allegations of the Applicant, the Court emphasized the procedural requirements that need to be fulfilled when a Referral is submitted based on paragraph 4 of Article 62 of the Constitution, as follows: (i) issuance of an act or decision; (ii) the requirement for “reconsideration” of this act or decision; (iii) action or inaction of the Municipal Assembly as a result of this request for “reconsideration”; and (iv) time limit of filing the Referral with the Court. The Court also noted that these 4 (four) requirements are cumulative in nature and that their fulfillment is mutually conditional.

In assessing the fulfillment of these procedural requirements, the Court initially considered the fourth requirement related to the time-limits where it found that the Referral was filed within time limits because it was submitted before the adoption of the new Rules of Procedure of the Constitutional Court of 31 May 2018, whereby 6-month time limit was set forth for those referrals which are submitted in accordance with paragraph 4 of Article 62 of the Constitution.  In terms of the time limits of filing the Referral, the Court applied its previous Rules of Procedure which was in force at the time of submission of the Referral and was more favorable for the Applicant.

While with regard to the fulfillment of other admissibility requirements, the Court noted that the Applicant challenged two Decisions issued by the Municipal Assembly, thus fulfilling the first admissibility requirement. However, with regard to the second requirement, the Court concluded that it was not fulfilled because the Deputy Chairperson for Communities did not submit to the Municipal Assembly any request for “reconsideration” of challenged decisions in terms of paragraph 3 of Article 62 of the Constitution. Taking into consideration that fulfillment of all admissibility requirements is of a cumulative nature, the Court continued to assess the other admissibility requirements, and declared the Referral of the Applicant inadmissible for consideration in merits.