Constitutional Court

KI117/21, Applicant: Shefqet Nikqi, Constitutional review of Judgment Rev. No. 360/2020 of the Supreme Court of 2 April 2021 

KI117/21, Resolution on Inadmissibility, of 21 October 2021, published on 9 November 2021

Keywords: individual referral, right to property, equality before the law, judicial protection of rights, manifestly ill-founded referral, fourth instance claims, unsubstantiated and unsupported claims

It follows from the case file that the  Applicant filed statement of claim with the Municipal Court in Peja whereby he specified that after the engagement of the surveyor in 2007, it was ascertained that the border or the boundary line between the immovable property, namely the plots [320/1 and 321/1] registered in the name of the Applicant and the immovable property of the respondents [J.N and D.N], namely the plot [320/2] is not where it is recorded in the cadastral registers but it is a few meters deep in the immovable property of the respondents on the east side of the immovable property of the Applicant. The Applicant’s specified statement of claim filed with the Basic Court specified that this disputed immovable property included a surface area of ​​1670 m2. Consequently, the Applicant requested the Basic Court to (i) approve his statement of claim; (ii) to find that the respondents J.N and D.N have usurped the abovementioned immovable property registered in the certificate of ownership on behalf of the Applicant and (iii) to oblige the respondents to return this part of the immovable property. On 24 May 2013, J.N and D.N, in their capacity as respondents – counterclaimants, filed a counterclaim with the Basic Court whereby they requested that the Applicant’s statement of claim be rejected in its entirety and to confirm that J.N is the owner on the basis of the adverse possession of the disputed immovable property. On 17 June 2015, the Basic Court by Judgment C. No. 561/12 among other things (i) rejected as ungrounded the Applicant’s statement of claim in its entirety; (ii) approved as partially grounded the statement of claim of the respondent-counterclaimant J.N and confirmed that the latter is the owner on the basis of the adverse possession of the immovable property in the surface area of ​​1670 m2 between plot 320/1 and 320/2 as well as established in paragraph 4 of Article 28 of the LBPR. Against the Judgment of the Basic Court, the Applicant filed an appeal with the Court of Appeals, and the latter by Judgment of 29 January 2020, rejected the Applicant’s appeal as ungrounded, upholding the finding and position of the Basic Court in entirety. As a result, the Applicant against the aforementioned Judgment of the Court of Appeals filed revision with the Supreme Court. On 2 April 2021, the Supreme Court by Judgment [Rev. No. 360/2020] rejected the Applicant’s revision as ungrounded.

The Applicant before the Constitutional Court alleged a violation (i) of his right to equality before the law, guaranteed by Article 24 of the Constitution; (ii) his right to property, guaranteed by Article 46 of the Constitution; and (iii) the judicial protection of his rights, guaranteed by Article 54 of the Constitution.

In assessing the Applicant’s allegations, the Court first elaborated on the general principles of its case law and that of the European Court of Human Rights regarding (i) the allegation of a violation of his property right, finding that this allegation is inadmissible, as manifestly ill-founded on constitutional basis as established in Rule 39 (2) of the Rules of Procedure of the Court; and (ii) allegations of violation of Article 24 and Article 54 of the Constitution, the Court found that these allegations are unsubstantiated or unsupported, and therefore, inadmissible as established in Article 48 of the Law on the Constitutional Court, and Rule 39 (1) (d) and (2) of the Rules of Procedure of the Court.