Constitutional Court

KI194/18, Constitutional review of Judgment Rev. No. 157/2018 of the Supreme Court of the Republic of Kosovo, of 4 July 2018

KI194/18, Kadri Muriqi and Zenun Muriqi

Resolution on Inadmissibility of 5 February 2020, published on 10 March 2020

Keywords: Individual referral, manifestly ill-founded, easement

This case stemmed from a dispute between neighbors over the right to easement, namely passing on the road in a village in the Municipality of Peja. The Applicants, two brothers, had acquired an immovable property which they managed to register as their joint property in the cadastral register of the Municipality of Peja, so that each of them was the owner of ½ of the entire immovable property.

The fact that the Applicants were the legitimate owners of the property in question was never disputable in the proceedings before the regular courts. Disputable, throughout the entire court proceedings, was whether the neighbors were entitled to easement  on the road that passed through and alongside their joint property.

Following the court proceedings to address the Applicants’ allegations presented in their lawsuit “for denial of easement and the delivery of immovable property”; after hearing responses to lawsuits filed by the interested parties; following the expertise of geodesy and hearing of neighboring witnesses and, after a total of 14 hearings, the Basic Court decided to reject the Applicants’ statement of claim in its entirety, deciding, in substance, that the easement for passing on this road had already been established in 1973. -74 and since then all the neighbors have used the road without any hindrance and that the former owner has never complained about it. Subsequently, the Court of Appeals and the Supreme Court upheld the decision of the Basic Court finally deciding to reject the Applicants’ statement of claim.

Before the Constitutional Court was challenged the decision of the Supreme Court in respect of the two other decisions of the lower court instances which rejected the Applicants’ statement of claim as ungrounded. The Applicants alleged that the regular courts violated the rights guaranteed by the Constitution and the ECHR in respect of: fair and impartial trial; protection of property; and, judicial protection of rights.

The Court, in conclusion, decided that: (i) the Applicants’ allegations of violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR with regard to the reasoning of the court decisions, non-assignment of super-expertise and the approval of the request for certain additional witnesses are manifestly ill-founded on constitutional basis, and as such, are to be rejected as inadmissible in accordance with Article 113.7 of the Constitution and Rule 39 (2) of the Rules of Procedure; (ii) the Applicants’ allegations of violation of Article 46 of the Constitution in conjunction with Article 1 of Protocol No. 1 of the ECHR regarding the property right are manifestly ill-founded on constitutional basis and as such are to be rejected as inadmissible based on Article 113.7 of the Constitution and Rule 39 (2) of the Rules of Procedure; and (iii) the Applicants’ allegations of violation of Article 54 of the Constitution in conjunction with Article 13 of the ECHR regarding the issue of judicial protection of rights and effective remedy are not adequately clarified and as such are to be rejected in accordance with Article 48 of the Law in conjunction with Rule 39 (1) (d) of the Rules of Procedure.