Constitutional Court

KI44/20, KI83/20 and KI102/20, Applicant: Besnik Kavaja, Constitutional review of Decision [Ac.no.1496/2020], of the Court of Appeals, of 29 April 2020, and Judgment[GSK-KPA-A-005/19] of the Supreme Court, of 11 March 2020  

KI44/20, KI83/20 and KI102/20, resolution on inadmissibility, adopted on 10 February 2021, published on 24 February 2021

Keywords: individual referral, property dispute, manifestly ill-founded referral, inadmissible referral

The Referrals were submitted by Besnik Kavaja, from Prishtina

The Applicant challenged the Decision [Ac.no.1496/2020] of the Court of Appeals, of 29 April 2020, and the Judgment [GSK-KPA-A-005/19] of the Supreme Court, of 11 March 2020.

The Applicant alleged that the challenged decisions violated his rights guaranteed by Article 24 [Equality before the Law], 31 [Right to Fair and Impartial Trial], Article 46 [Protection of Property] of the Constitution, as well as Article 1 of Protocol 1, Article 6 [Right to a fair trial], Article 13 [Right to an effective remedy] of the ECHR.

The Applicant alleged that the Housing and Property Claims Commission (HPCC) had excluded him and the party R.S. from the proceedings, thus violating his right of access to justice on the ground that, as alleged by him, they were prevented from challenging the decision [HPCC/REC/85/2006] of the HPCC, of 11 December 2006,  for the reason that he was not aware about the issuance of the decision in question until 25 October  2019 when he was informed that the Property Comparison and Verification Agency had initiated the procedure for the implementation of decisions and that he was called upon to vacate the apartment.

In this respect the Applicant alleges that the regular Courts have not taken into consideration the fact that he was never notified by the KPCVA regarding the above-mentioned decision of the HPCC and that thereby his rights guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR were violated.

He alleges that the Court and “Habitat” do not have the mandate to evict him from the apartment because as stated by him he did not enter the apartment by force, he possesses a valid contract, and has acquired the property in question “on the basis of legal and responsible possession in conformity with the domestic provision, based on Article 22 of the Constitution”, and that the eviction from the apartment is in contradiction with Article 46 of the Constitution and Article 1 of Protocol 1 of the ECHR.

The Court noted that in the circumstances of the present case, the essential issue relates to the Applicant’s allegation that he was never notified about the issuance of the decision of HPCC, and thereby it was made impossible for him to challenge the said decision, he also claims that the KPCVA through its actions has committed an act of obstruction of possession. As stated above, the Applicant alleges that the Courts have applied the legal provisions in erroneous and arbitrary manner. On the other hand, the regular courts, after having assessed each piece of evidence separately have come to the conclusion that the Applicant’s statement of claim and request for interim measures are ungrounded. The regular courts, have further emphasized that the competent bodies, in this case the KPCVA, during the exercise of their legal activity do not commit acts of obstruction of possession.

The Applicant further alleged that the challenged decision of the HPCC[HPCC /REC/85/2006/C] of 11 December 2006 was not served on him, but the Court confirms that even though the Applicant was never a party to the proceedings which he is trying to challenge and that the competent authorities have never been obliged to inform him about the proceedings in which he has  not taken part as a party, yet there does not stand the Applicant’s allegations that he was not notified about the decision of the HPCC, because this is corroborated from the response sent by the KPCVA, wherein it is stated that “both parties to the proceedings were informed about the decision and that on 24 April 2007 a copy of the decision was sent to the property location in order to notify the current occupant, namely the complainant”.

Moreover, the Court notes that the regular courts had addressed all of the Applicant’s allegations relating to (i) obstruction of possession; and (ii) the proposal for interim measures. Consequently and as elaborated above, the Court noted that all regular courts had found that the actions taken by the KPCVA are lawful because this body which is established by law has a specific field of activity which includes also the issue of vacation of properties, and that the actions taken do not constitute an act of obstruction of possession. In this respect, the Court considers that the regular courts had dealt with and reasoned in their entirety the Applicant’s allegations relating to obstruction of possession and that the proceedings before the courts in the circumstances of the present case do not result in any way to have been unfair or arbitrary.

As regards the Applicant’s allegations regarding the decision of the Supreme Court, where he stated that the Supreme Court had failed to treat the case brought before through the appeal. The Court notes that the Supreme Court  had provided response to the Applicant on the basis of the aforementioned UNMIK Regulation, which states that after the second instance decision, the case dealt with is considered “res judicata”, because according to Section 2.5 of that regulation in housing-property cases, the jurisdiction of the local courts was exclusionary, whilst the commission has the exclusive competence to resolve the categories of claims set out in Section 1.2 of this regulation. As regards the final decisions of the Housing and Property Claims Commission the Supreme Court has also referred to the case KI104/10 of the Constitutional Court.

The Court notes that the reasoning by the Supreme Court is clear and well-founded, and having examined all the proceedings, the Court also finds that the proceedings before the regular courts have not been unfair or arbitrary.

In conclusion, the Court considers that the Applicant’s Referral, as regards the two conducted proceedings, must be declared inadmissible as manifestly ill-founded, in accordance with Rule 39 (2) of the Rules of Procedure.