Constitutional Court

KI174/20, Applicant: “DE-KO” L.L.C., Constitutional review of Notification [KMLC.no.79/2020] of the Office of the Chief State Prosecutor, of 9 July 2020; and Decision [Ac.no.2817/19], of the Court of Appeals in Prishtina, of 16 April 2020 

KI174/20, resolution on inadmissibility, of 10 February 2021, published on 26 February 2021

Keywords: individual referral, enforcement procedure, out of time referral

The procedure against the Applicant conducted before the regular courts with respect to the legality of the Writ of enforcement [P.no.54/18] and the issue of enforcement of the disputable invoice was conducted before two judicial instances, the Basic Court and the Court of Appeals, and had resulted in the issuance of the Decision of the Court of Appeals [Ac.no.2817/19] of 16 April 2020, in which the latter rejected the Applicant’s request as ungrounded.

The Applicant had submitted a proposal to the Office of the Chief State Prosecutor to initiate a request for protection of legality in the Supreme Court against the Decision [PPP.no.146/18]  of the Basic Court and the Decision [Ac.no.2817/19]  of the Court of Appeals On 9 July 2020, the Office of the Chief State Prosecutor through Notification [KMLC.no.79/2020] informed the Applicant that it had rejected its proposal for initiating a request for protection of legality against the Decision of the Basic Court [PPP.no. 146/ 18] and the Decision of the Court of Appeals [Ac.nr.2817/19], after having considered that the Applicant’s allegations are not sufficient for filing  a request for protection of legality. 

The Applicant alleged before the Constitutional Court that the Decision [PPP.no.146 /18],  of the Basic Court, the Decision [Ac.no.2817/19] of the Court of Appeals and the Notification [KMLC.no.79/2020] of the Office of the Chief State Prosecutor have been issued in violation of his fundamental rights and freedoms guaranteed by Article 24 [Equality before the Law], Article 31 [Right to Fair and Impartial Trial] and Article 46 [Protection of Property] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR.

On the basis of the case law of the ECtHR, the Court recalls that, in the present case, a request for protection of legality through the State Prosecutor, in addition to being at the discretion of the latter, may be initiated only by the State Prosecutor if certain legal conditions are met. Moreover, the Applicant does not submit specific allegations in respect of the Notification of the Office of the Chief State Prosecutor, but submits to the Court the same allegations which it made against  the Decision of the Court of Appeals [Ac.no.2817/19], the allegations, which the Office of the Chief Prosecutor did not have the jurisdiction to address because it has the competence only to submit a request for protection of legality before the Supreme Court and not to assess the legal violations committed by the Court of Appeals. Therefore, in relation to these allegations, in the Applicant’s case, after receiving the Decision[Ac.no.2817/19] of the Court of Appeals, of 16 April 2020, there was nothing that prevented the Applicant from addressing the Constitutional Court. Therefore, the Court considers that the “final decision”, according to Article 49 of the Law, concerning the procedures related to the disputable invoices for which the Writ of enforcement was issued, is the Decision [Ac.no.2817/19] of the Court of Appeals of 16 April 2020, whereby the Applicant’s appeal submitted against the Decision of the Basic Court [PPP.no.146/18] was rejected.

In this regard, the Court recalls that the Decision [Ac.no.2817/19] of the Court of Appeals was issued on 16 April 2020. Even though the Applicant did not state the date of receipt of the Judgment, based on the facts of the case, it is clear that the time between the receipt of the Judgment and the date of submission of his Referral to the Constitutional Court, on 9 November 2020(the day when the Applicant had submitted his Referral by mail), has passed the time period of 4 (four) months. This is because the Applicant became aware of the Decision of the Court of Appeals at least on 24 June 24, 2020, when he had made the request to the Office of the Chief State Prosecutor.

Consequently, the Court concludes that the Applicant’s Referral relating to Decision [Ac.no.2817/19] of the Court of Appeals, of 16 April 2020, was submitted after the legal deadline of 4 (four) months.