Constitutional Court

The Applicant filed Referral based on Article 113.8 of the Constitution, alleging that the Articles 35, 36,37 and 38 of the Law on Expropriation of Immovable Property are in contradiction to the Article 102 (5) of the Constitution. The Applicants stated that the challenged Articles require the parties in proceedings to submit appeals with a Municipal Court, if the decision was issued by a Municipal Authority, and by the Supreme Court, if the decision on expropriation was issued by the Government. The Applicant further stated that the appeal may be filed against the decisions of the Supreme Court, although, there is no provision for an appeal against a decision of the Supreme Court allowed by the Constitution. The Applicant argues that the parties are put in an unequal situation; when the Municipal Court issues a decision, parties have right to pursue all remedies, including the remedy before the Supreme Court, but when the first instance decision is issued by the Supreme Court it is unclear which is the Court of the appellate jurisdiction. Consequently, according to the Applicant, the Articles 35,36,37 and 38 of the Law on Expropriation are in contradiction with Article 24 (1) of the Constitution, which provides that all are equal before the law.

Finally, the Applicant argues that implementation of the challenged provisions of the Law on expropriation would have a negative impact on the backlog of cases before the Supreme Court. The Applicant stated that at the time of making the Referral there were about 200 cases on expropriation.

The Court concluded that the Referral was admissible, because the Supreme Court based on Article 113.8 of the Constitution is authorized party and that it has met three procedural requirements: (1) the challenged law should have been directly implemented by the Applicant in the pending case; (2) the legality of the challenged law was a precondition for making a decision on the pending case by the Applicant; (3) the Applicant specified which provisions of the law were considered in contradiction with the Constitution.

Regarding the merits of the Referral, the Court examined Article 4 of the Law on Expropriation and counted the particular conditions that are implemented in the municipalities, where they want to expropriate the land for their functions. The Court further reasoned that Article 4 of the Law on Expropriation has to do with the mandate of the municipality in relation to its planning, construction of municipal roads, public facilities and such like. The Court also noted that based on Article 4 of the Law on Expropriation, if the expropriating authority is the Government, the functions relate to inter-municipal roads, railways, generation and transmission of energy, telecommunication lines and facilities, dams, public water reservoirs and others.

The Court further elaborated the nature and the distinction of the expropriation, made by the municipality on one side and by the Government on the other and that the parties in the first case could have appealed in the respective municipal courts, while in the last case, the parties may have filed appeal in the Supreme Court. Furthermore, the Court reasoned that Article 102 of the Constitution, allows the cases to be directly referred to the Supreme Court, without right of appeal, and that the Court was satisfied that there is no constitutional violation in providing that appeals against decisions of Municipalities are dealt with in the relevant Municipal Court and by providing that appeals against decisions of the Government are dealt within the Supreme Court.

Citing its case law in the Case KO 98/11, dated 20 September 2011, concerning the immunities of Deputies of the Assembly of the Republic of Kosovo, the President of the Republic of Kosovo and Members of the Government of the Republic of Kosovo, the Court reasoned that the Republic of Kosovo is defined by the Constitution as a democratic Republic based on the principle of the separation of powers and the checks and balances among them. The Court based on principle of the separation of powers, stated that the issue of the work load and the way of compensation of expropriated property are matters entirely within the jurisdiction of judiciary, the legislature and the Government. The Court held the Referral is admissible form procedural-formal aspect; that the Articles 35, 36, 37 and 38 of the Law on expropriation no. 03/L-139 are in compliance with the Constitution; The Judgment will be notified to the parties and will be published in the Official Gazette, pursuant to Article 20.4 of the Law and that the Judgment is effective immediately.