Constitutional Court

KI73/18 Applicant is N. S. who requested constitutional review of Decision CML. No. 36/2018 of the Supreme Court of 10 April 2018, in conjunction with Decision CN. No. 89/2015 of the Basic Court in Mitrovica of 14 August 2015

KI73/18, Resolution on Inadmissibility, of 8 October 2019, published on 1 November 2019

Keywords: Resolution on inadmissibility, ratione materiae, request for non-disclosure of identity

The Applicant submitted the Referral to the Constitutional Court for the second time.

In the first Referral, the Constitutional Court found that the Applicant had not exhausted all legal remedies, and for this reason, taking into account the Resolution of the Constitutional Court, the Applicant exhausted all legal remedies, and for the second time appeared as a party before the Court.

Upon reviewing the Applicant’s second Referral, the Court noted that, although he exhausted all legal remedies, namely he obtained the decision of the Supreme Court, in essence, he challenges the decision of the Basic Court in Mitrovica, which recognized the court decision of a foreign court, more specifically the court in Albania.

The Applicant stated in the Referral that the Basic Court in Mitrovica, by the procedure of recognition of a foreign court decision, violated his rights guaranteed by Articles 24 and 31 of the Constitution and Article 6 of the ECHR.

The Court, having regard to the substance of the appealing allegations of violation of Article 31 of the Constitution and Article 6 of the ECHR, found that the requirement for the application of Article 31 of the Constitution and Article 6 of the ECHR is that civil rights and obligations are established in the present proceedings. Therefore, in this case, the question arises as to whether, during the review by the Basic Court in Mitrovica, the legal requirements for recognizing a foreign court’s decision were met, and whether there is any obstacle to recognizing a foreign court’s decision, whether the civil rights and obligations were established, and whether, in the proceedings of considering a proposal for recognition of a decision of a foreign court, Articles 31 of the Constitution and 6 ECHR are applicable.

After analyzing and applying the principles and standards of the ECtHR, the Court concluded that the Applicant’s allegations of violation of Article 31 of the Constitution and Article 6 of the ECHR are ratione materiae incompatible with the Constitution, as in the present case there was no dispute in which were established the Applicant’s civil rights and freedoms. In essence, the Basic Court in Mitrovica found in accordance with law that the request for recognition of a foreign court decision fulfills all the legal requirements for its recognition, that is, the court only dealt with a procedural issue. Accordingly, the Basic Court rendered a decision by which a final court decision in Albania becomes a final decision and becomes part of the legal system of Kosovo.

The Court rejected the Applicant’s allegation of violation of Article 24 of the Constitution as ungrounded, while the Court did not deal with other decisions, because the Applicant did not request it in the Referral.

As regards the request for non-disclosure of identity, the Court approved the Applicant’s request as grounded.