Constitutional Court

KI158/20 Applicant: Municipality of Gjilan, Constitutional Review of the Judgment AC-I-17-0689 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters, of 24 June 2020

KI158/20 Resolution on Inadmissibility, of 20 May 2021, published on 04 June 2021

Keywords: individual referral, property dispute, right to fair trial, protection of property, manifestly ill-founded referral, inadmissible referral

The Applicant, before the Constitutional Court, challenges the constitutionality of Judgment [AC-I-17-0689] of the Appellate Panel of the Special Chamber of the Supreme Court on the Privatization Agency of Kosovo Related Matters, of 24 June 2020, alleging a violation of the rights guaranteed by Articles 22 [Direct Applicability of International Agreements and Instruments], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 46 [Protection of Property], 54 [Judicial Protection of Rights], 102 [General Principles of the Judicial System], of the Constitution of the Republic of Kosovo and Articles 6 [Right to a fair trial], 13 [Right to an effective remedy] and Article 1 of Protocol no. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In this case, the Court, by way of argumentation and construction of the case, noted that the Applicant’s allegations related to: (i) allegations of violation of the right to a “fair trial”, respectively the right to a reasoned decision guaranteed by Article 31 of the Constitution and Article 6.1 of the ECHR; (ii) allegations of violation of the right to an effective legal remedy guaranteed by Article 32 of the Constitution and Article 13 of the ECHR; (iii) allegations of violation of the right to property guaranteed by Article 46 of the Constitution and Article 1 of Protocol no. 1 of the ECHR, and (iv) other allegations of violation of the rights guaranteed by the Constitution.

Regarding allegation (I), the Court considered that the Applicant’s allegation of violation of the right to a fair trial, respectively the right to a reasoned decision, should be declared as manifestly ill-founded, because in no way is it found that the challenged Judgment of the Appellate Panel, contains insufficient reasoning or is clearly arbitrary. Consequently, this allegation must also be declared as manifestly ill-founded, on constitutional grounds, in accordance with Rule 39 (2) of the Rules of Procedure. With respect to allegation (II), the Court, based on the ECtHR case law, in many of its cases, has reiterated that the legal remedy which is not in the direct discretion of the Applicant to exercise an appeal against a court decision, cannot be considered effective. (see, the Constitutional Court case KI215/19, with Applicants: Fekë Kuçi, Resolution on Inadmissibility, of 15 July 2020, paragraph 45, which states: “… the request for protection of legality submitted to the State Prosecutor is a legal remedy which is not directly available to the Applicant, but depends on the “mediator”, and in the present case the “mediator” is the State Prosecutor, and as such is not considered by the Court (see Tanase v. Moldova, [VV], paragraph 122)”. With regard to allegation (III) the Court found that in the circumstances of the present case we are not dealing with a property right acquired by a final court decision nor with a legitimate expectation, because the Applicant does not have an enforceable right with which it evidences and proves that it has the right of ownership over the disputed apartments. (see, similarly, ECtHR case Kopecký v. Slovakia [GC], principles set out in paragraph 52). Therefore, in these circumstances, the Applicant cannot allege a violation of property rights, as the SCSC Panels, in its case, considered only the procedural aspects of its appeal/request, regarding the requests for de-expropriation and return in possession of the disputed immovable property. In this context, the Court found that the Applicant’s allegation regarding the violation of the right to property guaranteed by Article 46 of the Constitution and Article 1 of Protocol no. 1 of the ECHR is manifestly ill-founded for the reasons set out above.

In summary, the Court, based on the standards set in its case law and the ECtHR case law, found that the Applicant has not in any way proved and has not sufficiently substantiated its allegations of violation of rights guaranteed by the Constitution and the ECHR, respectively with the above articles. Therefore, the Court concludes that the Referral in its entirety should be declared inadmissible as manifestly ill-founded because these allegations of the Applicant qualify as allegations falling into category of (i) “fourth instance” allegations and category of (iii) “unsubstantiated and unsupported” allegations. Consequently, they are manifestly ill-founded on constitutional grounds, as set out in paragraph (2) of Rule 39 of the Rules of Procedure.