Constitutional Court

KI118/23, Applicant: Shehide Muhadri, Constitutional review of Judgment [Ac. no. 530/2016] of 30 March 2023, of the Court of Appeals of the Republic of Kosovo

The Constitutional Court of the Republic of Kosovo, on 5 November 2024, decided regarding Referral KI118/23, requesting the constitutional review of Judgment [Ac. no. 530/2016] of 30 March 2023 of the Court of Appeals of the Republic of Kosovo. The Court, unanimously, decided (i) to declare the referral admissible;  and (ii) to hold that the Judgment [Ac. no. 530/2016] of 30 March 2023 of the Court of Appeals, is not contrary to Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo and paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

The judgment initially clarifies that the circumstances of the present case are related to the Applicant’s claims regarding the right to acquire ownership with an acquisition by prescription. The Court regardingthe same case had previously received two (2) referrals from the Applicant, namely referrals KI145/18 and KI49/20. In the first referral, namely KI145/18, the Court found a violation of 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, on the grounds of the lack of reasoning of the court decision by the Court of Appeals. After the Court’s decision, the Court of Appeals, in the repeated procedure, rendered a new Judgment, which was again challenged before the Constitutional Court, by referral KI49/20. The Court again found a violation of 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, on the grounds of the lack of reasoning of the court decision by the Court of Appeals. According to the clarifications given in the Judgment, on 30 March 2023, based on the recommendations of the Court, the Court of Appeals rendered a new judgment, upholding the previous decisions of the Basic Court, inter alia, on the grounds that the “ownership over the socially owned property cannot be acquired on the basis of the acquisition by prescription“ and its reasoning, this time, had also based on the legal opinion issued by the Supreme Court, which clarified  how the lower instance courts should decide on cases with similar factual and legal circumstances.

The Applicant before the Court challenged Judgment [Ac. nr. 530/2016] of 30 March 2023 of the Court of Appeals, claiming violation of the rights guaranteed by Article 24 [Equality Before the Law] and Article 31 [Right to Fair and Impartial Trial] of the Constitution, as well as by paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights. More specifically, the Applicant alleged that the challenged Judgment of the Court of Appeals again violated her rights guaranteed by the above articles, among other things, because the Court of Appeals again did not take into account the findings of the Court in its Judgment, in case KI49/20.

In assessing the Applicant’s allegations, the Court first (i) elaborated the general principles of its case law and that of the European Court of Human Rights, relating to the right to a reasoned court decision, guaranteed 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; and then (ii) applied the same in the circumstances of the present case.

According to the clarifications given in the Judgment, the Court considered that the Court of Appeals, by Judgment [Ac. no. 530/2016] of 30 March 2023, (i) addressed the substantial claims of the Applicant, responding specifically to the issue related to consistency in decision-making on issues of acquisition of property in good faith through the acquisition by prescription; and (ii)  provided sufficient, comprehensive and concrete reasoning regarding the claims raised. Therefore, the Court concluded that the Court of Appeals in Judgment [Ac. 530/2016] of 30 March 2023, (i) provided the legal basis and explained with clarity why in the case of the Applicant a different outcome could not be expected regarding the right to acquire ownership with an acquisition by prescription; and (ii) why the cases referred to the Applicant in a regular procedure before the Court of Appeals did not constitute a case law and source of law regarding the manner of acquiring ownership with acquisition by prescription.

Therefore, the Court concluded that the Judgment (Ac. no. 530/2016] of 30 March 2023 of the Court of Appeals, is not contrary to Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo and paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

This translation is unofficial and serves for informational purposes only.