Constitutional Court

Case no. KI179/20, Applicant: Kosovo Telecom J.S.C., Constitutional review of Decision Ac. No. 3610/2020 of the Court of Appeals of Kosovo of 8 October 2020

Keywords: individual referral, enforcement of decision, exhaustion of legal remedies

Initially, the Court states that this request submitted to the Court, has proceedings that are ongoing in the regular courts, respectively the Supreme Court is reviewing the request for protection of legality submitted by the State Prosecutor. Consequently, the Court, based on its jurisprudence, considers them premature based on its practice.

It follows from the case file that the Applicant complains before the Court regarding the procedure for execution of the Decision of the Arbitral Tribunal pertaining to the dispute from the Agreement for Support Services of the Virtual Mobile Network Operator. After the Private Enforcement Agent issued the Enforcement Order [P. No. 491/19] of 15 July 2019, by which it allowed the Enforcement proposed by the company “Dardafon”, based on the enforcement document, namely the final Decision of the Arbitration [No. 20990/MHM] of 9 December 2016, the Applicant filed an objection.

The Basic Court by the Decision [PPP. No. 1486/19]: (i) approved as partially grounded the Applicant’s objection, regarding the amount of € 315,996.85, thus repealing the Enforcement Order [P. No. 491/2019] of 15 July 2019, in relation to this amount issued by the Private Enforcement Agent; and (ii) rejected the Applicant’s objection regarding the amount of € 24,684,003.15 as ungrounded, and for this part the Enforcement  Order [P. No. 491/2019] of 15 July 2019, issued by the Private Enforcement Agent, remains effective.

On 3 November 2020, the Applicant addressed the Office of the Chief State Prosecutor with a proposal to initiate a request for protection of legality in the Supreme Court against the Decision [PPP. No. 1486/19] of the Basic Court and the Decision [Ac. No. 3610/20] of the Court of Appeals.

On 10 November 2020, the Office of the Chief State Prosecutor filed a request for protection of legality [KMLC. No. 152/2020] with the Supreme Court against the Decision [PPP. No. 1486/19] of the Basic Court and the Decision [Ac. No. 3610/20] of the Court of Appeals. The Supreme Court is considering the request for protection of legality cited above, in connection to which it had scheduled a hearing for 20 January 2021.

The Court also recalls that it has already established in its case law that if the proceedings are pending before the regular courts, including the case when the proceedings before the Supreme Court are being conducted regarding the request for protection of legality by the Office of the Chief State Prosecutor, then the Applicants’ Referral is considered premature (see the case of Court KI102/16, Applicant Shefqet Berisha, Resolution on Inadmissibility, of 14 December 2016, paragraphs 37-39). In this regard, the Court emphasizes the fact that all allegations of the Applicant of a legal violation by the Basic Court and the Court of Appeals regarding the Enforcement Procedure pertaining to the Enforcement Order [P. No. 491/19] of 15 July 2019, may be reviewed by the Supreme Court.

In this regard, the Court recalls that the rule for 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 those who wish to bring their case before the Constitutional Court that they must first use the effective legal remedies available to them in accordance with law, against a challenged judgment or decision.

Therefore, the Court concludes that the Applicant’s Referral is premature and is to be declared inadmissible on constitutional basis, as established by Article 113.7 of the Constitution, foreseen by Article 47 of the Law and further specified by Rule 39 (1) (b) of the Rules of Procedure.