Constitutional Court

KI38/20, Applicant: Mirko Samardžić, Constitutional review of Judgment AC-I-17-0074-A123 of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters, of 8 October 2019

KI38/20, Resolution on Inadmissibility, of 22 September 2021, published on 21 October 2021

Keywords: individual referral, manifestly ill-founded referral, inadmissible referral.

In essence, the Applicant challenges before the Court the decision of the Appellate Panel of the SCSC, alleging a violation of Article 24 [Equality before the Law] and Article 31 [Right to Fair and Impartial Trial] of the Constitution by focusing his argument on unlawfulness, namely on erroneously determined factual situation and erroneous application of the provisions of the applicable law.

The Applicant has built his case on the basis of legality, namely on erroneously determined facts situation and erroneous application of the law by the regular courts; further the Applicant merely enumerates and generally describes the content of the constitutional provision, but fails to specifically state how this provision has been violated in his case. 

As regards the Article 24 of the Constitution, the Court notes that the Appellate Panel has explained to the Applicant that it was his legal obligation either to raise the issue of discrimination before the first instance or to provide a justifiable reason as to why this allegation was not submitted before the first instance, given that the Applicant has not done so the Appellate Panel did not deal with this issue.

The Applicant did not reason or provide evidence that the Applicant’s position could be considered similar to that of another person who had better treatment (see: Fredin v. Sweden (no. 1), paragraph 60, ECtHR Judgment of 18 February 1991,  see also the case of Court KI166/20, cited above, paragraph 49).

The same principle applies to the Applicant’s allegations before the Court referring to the alleged violations of Article 31 of the Constitution. The Court emphasizes that the Applicant alleges violations of the Constitution, without providing arguments or explaining how they were violated by the challenged decision of the Appellate Panel of the SCSC (see, inter alia, in this respect, the case of Court no.KI68/17, Applicant Hysni Bytyqi, Resolution on Inadmissibility of 4 June 2018, paragraph 32).

In this respect, the Court in addition emphasizes that the mere fact that the Applicant is not satisfied with the outcome of the judgment of the Appellate Panel of the SCSC or the mere mention of articles of the Constitution and other international instruments is not sufficient to build an allegation on a constitutional violation. When alleging such violations of the Constitution, the applicants must provide reasoned allegations and compelling arguments (see, in this respect, the case of Court KI136/14, Applicant Abdullah Bajqinca, Resolution on Inadmissibility of 10 February 2015, paragraph 33).

Consequently, the Referral is manifestly ill-founded on constitutional basis and must be declared inadmissible pursuant to paragraph 7 of Article 113 of the Constitution and paragraph (2) of Rule 39 of the Rules of Procedure.