Constitutional Court

KI127/19, Applicant: Benizar Berisha, constitutional review of Decision Ac. No. 4988/18 of the Court of Appeals, of 13 March 2019

KI127/19 Resolution on inadmissibility, of 13 May 2020, published on 27 May 2020

Keywords: individual referral, enforcement procedure, right to a fair trial, manifestly ill-founded referral, inadmissible referral

The Applicant challenged before the Constitutional Court the constitutionality of Decision [Ac. No. 4988/18] of the Court of Appeals of 13 March 2019, alleging a violation of her rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights. The Applicant filed a request for enforcement of the Judgment [AC. No. 1302/2018] of the Court of Appeals, of 11 June 2018, regarding the payment of an obligation, in the amount of 5500 € (five thousand five hundred euro), which had to be paid by her ex-spouse on behalf of alimony. However, after filing the objection, the enforcement court of the first instance decided to correct the total amount of the obligation of 5500 € (five thousand five hundred euro) euro), because the ex-spouse of the Applicant had paid part of the obligation from time to time through bank transfers. As a result, the Applicant claimed that the interference of the enforcement courts in deducting the payment of the total amount had affected the adjudicated matter (res judicata) and the principle of legal certainty.

In these circumstances, the Court held that the enforcement courts had not affected the substance of what had been decided, under the contested procedure, by the final Judgment [AC. No. 1302/2018] of the Court of Appeals, of 11 June 2018, because the enforcement courts  have not reopened or changed the adjudicated matter, not even in terms of: i) the entrustment, care and education of the child O.M. nor in terms of ii) determining the amount of the monthly obligation of € 150 (one hundred and fifty euro), in relation to alimony, but have corrected the total amount of the obligation of 5500 € (five thousand five hundred euro), from the reasons elaborated above in paragraphs 47 and 48 of this decision. As for the other claims of the Applicant that the enforcement courts had to consider the submissions submitted to them, the Court held that it is not within its jurisdiction as a Court to assess matters of fact or law, because as a rule, these issues are the competence of the regular courts, insofar that their decision-making does not lead to apparent arbitrariness.

In sum, the Court considers that the Applicant, on constitutional basis, has not substantiated her claims that the relevant proceedings were in any way unfair or arbitrary and that the challenged Decision violated her rights and freedoms, guaranteed by the Constitution and the Convention.  Therefore, the Court, in accordance with Rule 39 (2) of the Rules of Procedure, concludes that the Applicant’s Referral, on constitutional basis, is to be declared inadmissible, as manifestly ill-founded.