Constitutional Court

KI 19/20, Applicant: Lutfi Shantir, Constitutional Review of Decision CP. nr. 2739/2014 of the Basic Court in Prizren of 27 January 2020

KI 19/20, Resolution on Inadmissibility of 22 July 2020, published on 20 August 2020.

Keywords: individual referral, civil procedure, non-exhaustion of legal remedies, inadmissible referral 

In the present case, the Basic Court in Prizren had determined that, based on Article 13.2 of the LEP, the enforcement procedure can be suspended if the creditor (the Applicant) does not deposit the funds required to cover the costs of the enforcement procedure.

Before the Constitutional Court, the Applicant did not refer to any constitutional provision in particular, however based on his Referral it resulted that he complains: (i) for non-enforcement of the enforcement case in his favor which is related to the right to a fair and impartial trial guaranteed by Article 31 [Right to a Fair and Impartial Trial] of the Constitution in conjunction with Article 6 [Right to a Fair Trial] of the ECHR; and (ii) that he has been discriminated against because he is a member of the minority community in Kosovo, which is related to Article 24 [Equality Before the Law] and Article 14 [Prohibition of Discrimination] of the ECHR.

The Court recalled that the rule on exhaustion of legal remedies under Article 113.7 of the Constitution, Article 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure obliges applicants wishing to file their case with the Constitutional Court that they firstly use the effective legal remedies available in accordance with the law, against a challenged judgment or decision.

In the present case, the Court noted that there is a possibility to file an appeal, as a regular legal remedy, against the challenged decision CP. nr. 2739/2014 of the Basic Court in Prizren, of 27 January 2020.  

The Court found that the proceedings before the regular courts regarding the subject matter of the dispute between the Applicant and the opposing party are still ongoing and pending before the Court of Appeals on the basis of the appeal filed by the Applicant and that the Applicant does not reason that the appeal to the Court of Appeal for any reason was not available and was ineffective in the particular circumstances of the case or that there were special circumstances due to which he was released from the requirement of exhaustion of legal remedies.

The Court concluded that the Referral must be declared inadmissible as the Applicant has not exhausted all legal remedies in accordance with Article 113.7 of the Constitution, Articles 20 and 47 of the Law, and Rule 39 (1) (b) of the Rules of Procedure.