Constitutional Court

KI131/20, Applicant: Arjana Syla, Constitutional review of Decision Rev. 351/2019 of the Supreme Court of 25 June 2020

KI131/20, Resolution on inadmissibility, rendered on 5 May 2021, published on 15 June 2021

Keywords: individual referral, civil procedure, manifestly ill-founded referral, inadmissible referral

The Referral was submitted by Arjana Syla from Prishtina, represented by Xhemajl Syla from Podujeva. The Applicant challenges Decision [Rev. 351/2019] of 25 June 2020 of the Supreme Court of Kosovo, which allegedly violates the Applicant’s rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution) in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights.

The Applicant further states that the Supreme Court, by not properly reviewing her revision, violated the provisions of the Constitution and the ECHR. The Applicant further states that “the contract for the sale-purchase of the immovable property on the basis of which the deceased spouse F.S. as owner has entered into possession and use of this immovable property on the basis of the sale-purchase contract which has not yet been annulled as invalid, therefore, until this contract is annulled by final judgment in accordance with the provisions of Article 20 paragraph 1 in conjunction with Article 3 paragraph 1 of the Law on Basic Legal Property Relations, which was a law applicable in Kosovo at the time of entering into the contract, this contract is legally valid and creates legal effects between the contracting parties”.

The Court noted that, in essence, all allegations of the Applicant are mainly related to violation of Article 31 of the Constitution, in conjunction with Article 6 of the ECHR. In this regard, the Applicant complains that in her case the regular courts have erroneously determined the facts, and have not sufficiently reasoned their decisions.

With regard to these allegations, the Court first notes that as a general rule, the allegations of erroneous determination of factual situation and erroneous interpretation of the law, allegedly made by the regular courts, are related to the scope of legality and, as such, do not fall under the jurisdiction of the Court, therefore, in principle, the Court cannot consider them (see, the case of Court No. KI06/17, Applicant L.G. and five others, Resolution on Inadmissibility, of 25 October 2016, paragraph 36; case KI122/16, Applicant Riza Dembogaj, Judgment of 30 May 2018, paragraph 56; and KI49/19 Applicant Limak Kosovo International Airport J.S.C. “Adem Jashari” , Resolution on Inadmissibility of 10 October 2019, paragraph 47).

The Applicant’s main allegation was the recognition of the right to an apartment, for which apartment there has already been a final decision issued by the Property and Housing Directorate, and the Court noted that all the regular courts had concluded that the decisions of the HPCC are final and cannot be reviewed by any other administrative or judicial instance. Regarding the same issues, the Court has decided in other cases, where it has concluded that the decisions of the HPCC are final decisions – res judicata (see cases of the Court: KI104/10, Applicant Draža Arsić, Judgment of 23 April 2012; KI44/20, KI83/20 and KI102/20, Applicant Besnik Kavaja, Resolution on Inadmissibility of 22 February 2021, paragraph 83).

Therefore, the Court noted that one of the fundamental principles of the rule of law in a democratic society is the principle of legal certainty. This applies in particular to the judicial decisions that have become res judicata. No party is entitled to seek for a review, revocation, reconsideration or the abrogation of a final and binding decision merely for the purpose of obtaining a rehearing and a fresh determination of the case (see, mutatis mutandis, case Sovtransavto Holding v. Ukraine, no. 48553/99, paragraph 72, ECtHR 2002-VII, si dhe Ryabykh v. Russia, no. 52854/99, § 52, ECtHR 2003-IX).

Therefore in these circumstances, based on the above and taking into account the allegation raised by the Applicant and the facts presented by her, the Court, relying also on the standards established in its case law in similar cases and case law of the ECtHR, found that the Applicant does not prove and does not sufficiently substantiate her allegation of violation of fundamental rights and freedoms guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR.

Therefore, the Court considered that the Applicant has not substantiated the allegations that the relevant proceedings were in any way unfair or arbitrary, and that the challenged decision violated the rights and freedoms guaranteed by the Constitution and the ECHR.

In conclusion, in accordance with Rule 39 (2) of the Rules of Procedure, the Referral was declared as manifestly ill-founded on constitutional basis and, therefore, inadmissible.