Constitutional Court

KI133/19, Applicant: Nysret Tafili, Constitutional review of Judgment Rev. No. 204/2019 of the Supreme Court of the Republic of Kosovo, of 25 July 2019 

KI133/19, Resolution on inadmissibility, of 26 February 2020, published on 10 July 2020

Keywords: Individual referral, referral manifestly ill-founded on constitutional basis, principle of legal certainty, divergence in case law, “profound and long-standing differences”

1. Based on the Contract [06 No.784-25] of 14 November 2008 signed between the Applicant and the Municipality of Kaçanik, the Applicant’s right to temporary use of the construction land was extended, where in order to exercise the professional activity of the Applicant was also placed a prefabricated building. Based on Article VI of the aforementioned Contract, which stipulated that  if the destination of the location given in the temporary use  changes  then the building  will be removed without any compensation. On 1 April 2009, the Municipality of Kaçanik by the Decision [01. No. 7311/o8] decided to demolish the abovementioned prefabricated building, located on the property given for temporary use and exploited by the Applicant. After the demolition of the building, the Applicant filed a claim with the former Municipal Court of Kaçanik, on behalf of the lost profit, for compensation from the Municipality of Kaçanik. The Basic Court rejected his claim for compensation as ungrounded. Consequently, the Court of Appeals, as a result of his appeal against the Judgment of the Basic Court, upholding the reasoning of the Basic Court, also rejected his appeal as ungrounded. In its Judgment, the Court of Appeals upheld the reasoning given by the Judgment of the Basic Court, which was based on the Contract [06 No. 784-25] of 14 November 2008, signed between the Applicant and the Municipality of Kaçanik, in the capacity of the respondent. The Court of Appeals also found that the Applicant through this Contract has accepted all the rights and obligations arising from this Contract. As a result of the request for revision against the two aforementioned Judgments of the Basic Court and the Court of Appeals, filed by the Applicant, the Supreme Court by the challenged Judgment [Rev. No. 204/2019] of 25 July 2019, finding that these two Judgments did not contain essential violation of the provisions of the contested procedure and that the lower courts have correctly applied substantive law, rejected the Applicant’s revision as ungrounded.

2. The Applicant specifically alleged that the Supreme Court, in another case, which according to him, encompasses the identical factual and legal circumstances as those of his case by its Decision had approved the revision of another party. In the context of this allegation, the Applicant states that the Supreme Court, having decided otherwise in two (2) identical cases, has violated his right to fair and impartial trial, guaranteed by Article 31 of the Constitution and Article 6 of the ECHR, namely the Applicant in substance alleged violation of the principle of legal certainty as a result of the contradictory decisions of the Supreme Court.

3. The Court, in assessing the admissibility of the referral, found that regarding the fulfillment of the admissibility requirements, the Applicant is an authorized party, challenging an act of a public authority, namely Judgment [Rev. 204/2019] of 25 July 2019 of the Supreme Court, after having exhausted all legal remedies defined by law, and submitted the referral in accordance with the deadlines set out in Article 49 of the Law on the Constitutional Court. However, the Court, after applying the criteria on the basis of which the Court and the ECtHR address the issues of divergence regarding the case law, beginning with the assessment of whether in the circumstances of the present case, (i) the alleged divergences in case law are “profound and long-standing” and, if this is the case, (ii) the existence of mechanisms capable of resolving the relevant divergence; and (iii) the assessment of whether these mechanisms have been implemented and with what effect in the circumstances of the present case, found that  it is not possible to ascertain the existence of “profound and long-lasting differences” in the case law of the Supreme Court that endanger the principle of legal certainty by invoking only one Decision of the Supreme Court, rendered 4 (four)  moths earlier. Therefore, the Court found that the Applicant’s Referral is manifestly ill-founded on constitutional basis and declared it inadmissible, in accordance with paragraph 7 of Article 113 of the Constitution, Article 47 of the Law and paragraph (2) of Rule 39 of the Rules of Procedure.