Constitutional Court

KI94/21, Applicant: Fatmir Hoti, Constitutional review of Decision Ac. No. 5974/2020 of the Court of Appeals of 11 December 2020 

KI94/21, Resolution on Inadmissibility, of 23 September 2021, published on 12 October 2021

Keywords: individual referral, request for security measure, lack of a reasoned court decision, ratione materiae referral, inadmissible referral, apparent absence of violation, unsubstantiated and unsupported claim

the Court recalls that the circumstances of the present case relate to the statement of claim of the Applicant filed with the Basic Court in Gjakova against E.H for the payment of a debt to him in the amount of 470,000.00 euro. As a result of his statement of claim, the Applicant in the Basic Court in Prishtina requested the imposition of a security measure on immovable property on behalf of E.H, which claim was approved by Decision [C. No. 1710/15] of 21 October 2015 of this court. However, on 4 September 2019, E.H. in the same court, namely in the Basic Court in Prishtina filed a request for annulment of the security measure imposed by this court on the grounds that (i) the Applicant in the final Judgment [PKR . No. 23/14] of 16 May 2016, of the Basic Court in Gjakova was found guilty and sentenced to one year and six months imprisonment for committing the criminal offense “Contracting disproportionate benefit”; (ii) that the Applicant, in order to avoid serving his sentence, is on the run as a result of this Judgment; and (iii) that the Applicant based his request for a security measure on incriminating action. The Basic Court in Prishtina, after holding a hearing, where it had heard the litigants and the administration of the attached evidence, decided to annul the security measure against the immovable property on behalf of E.H. In its Decision, the Basic Court in Prishtina, referring to paragraph 1 of Article 309 and paragraph 2 of Article 312 of the LCP, found that the circumstances on the basis of which the security measure was imposed had changed. Against this Decision of the Basic Court in Prishtina, the Applicant filed an appeal with the Court of Appeals, with the essential allegation that the Basic Court did not reason its decision with the facts and legal requirements on the basis of which a certain measure  of security can be imposed and annulled. The Court of Appeals, by Decision [Ac. No. 5974/2020] of 11 December 2020 rejected the Applicant’s appeal as ungrounded, upholding the above-mentioned Decision of the Basic Court in Prishtina as fair and based on law.

The Applicant, in his Referral, alleged a violation of his fundamental rights guaranteed (i) by Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights (hereinafter: ECHR), as a result of the lack of a reasoned court decision; and (ii) Article 1 (Protection of Property) of Protocol no. 1 of the ECHR.

Initially, in the context of the Applicant’s allegation of violation of Article 31 of the Constitution, in conjunction with Article 6 of the ECHR, the Court, taking into account the fact that the challenged Decision of the Court of Appeals is related to the imposition of a security measure, issued in the preliminary procedure, examined whether the referral is ratione materiae in compliance with the Constitution, namely examined and assessed whether in this case the procedural guarantees set out in Article 31 of the Constitution, in conjunction with Article 6 of the ECHR, are applicable. In this context, the Court, applying the criteria established in the case law of the ECtHR and the Court itself, found that in the Applicant’s circumstances the criteria for the applicability of the procedural guarantees set out in Article 31 of the Constitution in conjunction with Article 6 of the ECHR have been met. Consequently, the Court continued to examine the allegation of violation of the Applicant’s right to a fair and impartial trial, due to the lack of a reasoned court decision.

The Court by applying again the principles established through the case law of the ECtHR and of the Court regarding the right to a reasoned court decision, found that the Court of Appeals has addressed the Applicant’s allegations raised in his appeal regarding the Decision of the Basic Court in Prishtina, by which the imposition of a security measure on immovable property in the name of E.H. was annulled. In this context, the Court, based on the explanations above, and specifically taking into account the allegations raised by the Applicant and the facts presented by him, as well as the reasoning of the regular courts elaborated above, considers that the challenged decision of the Court of Appeals is not characterized by a lack of a reasoned court decision. Therefore, the Applicant’s allegation regarding the lack of a reasoned court decision is manifestly ill-founded on constitutional basis due to “clear or apparent absence of a violation” as established in Rule 39 (2) of the Rules of Procedure.

Whereas, regarding the Applicant’s allegation of violation of his right to property, guaranteed by Article 1 of Protocol no. 1 of the ECHR, the Court considered that this allegation is “unsubstantiated or unsupported” claim, and therefore, inadmissible as established in Article 48 of the Law and Rule 39 (1) (d) and (2) of the Rules of Procedure.