Constitutional Court

KI214/19 Applicant: Murteza Koka, constitutional review of Decision Rev. No. 195/2019 of the Supreme Court of Kosovo, of 23 July 2019 

KI214/19 – Judgment of 29 July 2020, published on 24 August 2020

Keywords: Individual referral, admissible referral, property dispute, admissibility of revision, res judicata principle

The main issue raised by the Applicant in his Referral before the Constitutional Court was whether the Supreme Court by Decision [Rev. No. 195/2019] reopened the Applicant’s case decided by Judgment [AC. No. 3332/2013] of 26 April 2018 of the Court of Appeals which upheld the Judgment [C. No. 38/2012] of 30 April 2013 of the Basic Court, which approved the Applicant’s lawsuit and confirmed that the Applicant is the owner of the property that was the subject of the dispute.

In this regard, after the Judgment [AC. No. 3332/2013] of the Court of Appeals, the Municipality of Gjakova, through the Basic Court, filed a revision with the Supreme Court. While the Applicant submitted a response to the revision challenging the admissibility of the revision because according to him, the value of the dispute was 200.00 euro, while according to Article 211, paragraph 3 of the Law on Contested Procedure, the revision is not allowed if the value of the object of the dispute does not exceed the amount of 3000.00 euro. The Basic Court, by Decision [C. No. 38/2012], rejected the revision of the Municipality of Gjakova as inadmissible on the grounds that the value of the dispute in the lawsuit and the statement of claim was below the amount of 3000.00 euro.

The Court of Appeals, by Decision [Ac. No. 3860/18], approved as grounded the complaint of the Municipality of Gjakova and remanded the case for retrial and reconsideration, after assessing that the first instance court should have applied Article 36 of the LCP ex officio to verify the value of the dispute indicated in the lawsuit and then make a decision on determining the value of the dispute. The Basic Court after the Decision [Ac. No. 3860/18] of the Court of Appeals, forwarded the case file to the Supreme Court to decide on the revision. Whereas, the Supreme Court by the Decision [Rev. No. 195/2019] approved the revision as grounded, annulled the Judgment [AC. No. 3332/2013] of the Court of Appeals of 26 April 2018 and the Judgment [C. No. 38/2012] of the Basic Court of 30 April 2013, confirming the right of ownership of the Applicant for the disputed property, and remanded the case for retrial.

The Applicant alleged before the Constitutional Court that the challenged decision of the Supreme Court by which the case decided by Judgment [C. No. 38/2012] of 30 April 2013 of the Basic Court which has become final by Judgment [AC. No. 3332/2013], of 26 April 2018 of the Court of Appeals, was remanded again for decision on merits in the Basic Court without a reasoning on the admissibility of the revision according to the allegations presented in the Applicant’s response to the revision, and this allegedly has violated his right to fair and impartial trial guaranteed by Article 31 of the Constitution and Article 6 of the ECHR, as well as the right to equality before the law and the right to protection of property guaranteed by Articles 24 and 46 of the Constitution.

The Constitutional Court, based on its previous case law, as well as that of the European Court of Human Rights, concluded that the Supreme Court, by the challenged decision, reopened the Applicant’s case decided by Judgment [AC. No. 3332/2013], of 26 April 2018 of the Court of Appeals which upheld the Judgment [C. No. 38/2012] of 30 April 2013 of the Basic Court and which became res-judicata, taking into account the value of the dispute which according to court decisions, was below the amount for which revision is allowed, while the value of the object of the dispute was not challenged and corrected by any decision of the regular courts.

Therefore, quashing Judgment [AC. No. 3332/2013] of 26 April 2018 of the Court of Appeals, which upheld the Judgment [C. No. 38/2012] of 30 April 2013 of the Basic Court, without assessing the admissibility of the revision, the Supreme Court violated the principle of legal certainty and denied the Applicant a fair and impartial trial regarding his rights and obligations within the meaning of Article 31, paragraph 2 of the Constitution and Article 6, paragraph 1 of the ECHR.

With regard to the Applicant’s allegation of violation of the right to protection of property and the right to equality before the law guaranteed by Articles 46 and 24 of the Constitution, the Court stated that given that the Court concluded that the challenged decision violated the right to a fair trial guaranteed by Article 31 of the Constitution and Article 6 of the ECHR, and declared invalid  Decision Rev. No. 195/2019, of the Supreme Court of Kosovo, of 23 July 2019, the Court did not find it necessary to address separately the allegations of violation of the right to protection of property and the right to equality before the law guaranteed by Articles 46 and 24 of the Constitution.