Constitutional Court

The applicant, Mr. Rexhep Rahimaj, filed a Referral pursuant to Article 113.7 of the Constitution of Kosovo challenging the decision of the District Court of Gjilan, Ac. no. 359/10, as being taken in violation of the Law No. 03/L-008 on Execution Procedure and of his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] and Article 46 [Protection of Property] of the Constitution and Article 1 of Protocol 1 of ECHR, since the District Court postponed the execution of the res judicata decision of the Municipal Court of Kamenica, C. no. 74/2007.

On the issue of the admissibility of the Referral, the Court held, based upon the plain language of Article 113.7 that the referral was admissible because in the present Referral Mr. Rexhep Rahimaj contests the constitutionality of Decision Ac. no. 359/10 of the District Court in Gjilan, dated 14 December 2010. Therefore, the Applicant must be considered as an authorized party, entitled to refer this case to the Court and to have exhausted all legal remedies as provided by law, pursuant to Article 113.7 of the Constitution. As to the requirement of Article 49 of the Law that the Applicant must have submitted the Referral within a period of four (4) months, the Court determines from the submissions of the Applicant that the Applicant was served with the above Decision of the District Court on 6 January 2011, while the Applicant submitted the Referral to the Court on 15 April 2011, i.e. within the four months time limit as provided by Article 49 of the Law. Further, the Applicant has set out in detail what rights under the Constitution and the ECHR have allegedly been violated and by what public authority. Hence, the Court also finds that the Applicant has fulfilled the requirement of Article 48 of the Law.
On the merits of the Referral, the Court held that the District Court in Gjilan has acted contrary to Article 31 of the Constitution by postponing the decision on the execution of the Municipal Court’s res judicata decision. In these circumstances, the Court concludes that the Applicant’s rights to a fair and effective trial, as guaranteed by Article 31 of the Constitution has been violated and that the res judicata decision of the Municipal Court of Kamenica, Decision C. no. 74/2007 of 28 September 2007, must be executed. In reaching its decision, the Court also relied on the decisions of the Constitutional Court and the European Court of Human Rights addressing the same or similar issue. The Court declared null and void the decision of the District Court and remanded the decision to the District Court for reconsideration in conformity with the judgment of this Court.