Constitutional Court

KI40/20, Applicant: Sadik Gashi, Constitutional review of Decision Ac. no. 1449/2011 of the District Court in Prishtina, of 30 January 2012 and Judgment Rev. no. 333/2019 of the Supreme Court, of 6 November 2019 

KI40/20, Resolution on Inadmissibility, adopted on 21 January 2021, published on 05 February 2021

Key words: individual referral, manifestly ill-founded referral, out of time referral, substantial non-exhaustion, inadmissible referral.

The circumstances of the present case relate to the divorce of the Applicant and B.F., and the subsequent proceedings concerning the division of the joint property. B.F.  had initially initiated (i) a request for the interim measure, whereby, she requested the prohibition of alienating, pledging, mortgaging or certifying and legalizing of any contract on sale and purchase of the disputable immovable property; and (ii) the procedure regarding the request for division of the joint property, a request which was made during the hearing session before the Basic Court, and was replaced with the request for compensation of the separate property on the basis of Article 46 of the Family Law. The proceedings concerning the interim measure had resulted in favor of B.F.  Whereas, in the proceedings for compensation of separate property, the Basic Court had partially approved the statement of claim of B.F., by obliging the Applicant to compensate her in the amount of 31,582 euros. The Basic Court had ascertained that the house had been constructed by the investment of the father of B.F., and was consequently categorized as a separate property. The value of the compensation was determined by the Basic Court after having assessed two expert reports, while it based its decision on the expertise which the Applicant had assessed as being “closer to the existing reality”. Despite the appeal and the request for revision, filed with the Court of Appeals and the Supreme Court, respectively, the said courts had confirmed the findings of the Basic Court.

The Applicant before the Court challenges (i) the Decision [Ac. no. 1449/2011] of 30 January 2012 of the District Court in Prishtina whereby the imposition of the interim measure against the disputed immovable property was confirmed as per the request of B.F.; and (ii) Judgment [Rev. no. 333/2019] of 6 November 2019 of the Supreme Court, alleging that they were issued in violation of his rights guaranteed by Article 21 [General Principles] and Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights.

With regard to the alleged violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, the Applicant stated, inter alia, that (i) the challenged Judgment of the Supreme Court does not meet the standards of a reasoned court decision; and (ii) in the proceedings before the Basic Court, “not all the witnesses proposed by him were heard, but only the witnesses proposed by B.F. were heard, and consequently, according to him, this constitutes a procedural violation”.

The Court, after assessing the allegations of the Applicant, applying also the standards of the case law of European Court of Human Rights,  found that the Applicant’s Referral is inadmissible, because the allegations for a violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights in relation to Decision [Ac.no.1449/2011] of the District Court, of 30 January 2012, are out of time, in accordance with Article 49 of the Law and Rule 39 (1) (c) of the Rules of Procedure; whereas the allegations for a violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights concerning the Judgment [Rev. no. 333/2019] of the Supreme Court, of 6 November 2019 (i) due to the lack of a reasoned court decision based on the “clear or apparent absence of a violation” are manifestly ill-founded, in accordance with paragraph 7 of Article 113 of the Constitution, Article 47 of the Law and Rule 39 (2) of the Rules of Procedure; whereas (ii) regarding the lack of having the relevant witnesses heard before the Basic Court, are inadmissible as a result of non-exhaustion of legal remedies in the substantial aspect, as required by paragraphs 1 and 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of Law and item (b) of paragraph (1) of Rule 39 of the Rules of Procedure.