Constitutional Court

SKI44 / 18 Applicant: “Mega Shop”, Constitutional Review of Judgment Rev. no. no. 125/2017 of the Supreme Court of 15 November 2017

KI44 / 18, Resolution on Inadmissibility of 8 May 2019, published on 14 June 2019

Key words: legal persons, individual claims, constitutional review of the challenged judgment of the Supreme Court, manifestly ill-founded.

The Referral is based on Article 21.4 and 113.7 of the Constitution, Articles 47 of the Law on the Constitutional Court of the Republic of Kosovo no. 03 / L-121 and Rule 32 of the Rules of Procedure of the Constitutional Court.

The Applicant, has on his own initiative in 2007 entered into a mortgage agreement with the Raiffeisen Bank Kosovo JSC.

 The Applicant by the said agreement has undertaken the obligation to have the credit received from Raiffeisen Bank in Kosovo paid back pursuant to the dynamics specified by the agreement and agreed that otherwise the Raiffeisen Bank in Kosovo is entitled  to sell the property that was the subject of mortgage agreement.

Given the fact that the Applicant has not fulfilled the obligations related to the dynamics of credit payments, Raiffeisen Bank in Kosovo has initiated before the Municipal Court in Gjilan enforcement procedure requesting to announce a public sale of assets from the mortgage agreement due to non-fulfillment of the obligations from the mortgage agreement by the Applicant.

Following the enforcement procedure and public auction, this procedure was resolved by a decision of the Municipal Court in Gjilan according to which the Raiffeisen Bank has registered its ownership over the real estate specified in the mortgage agreement, in  cadastral  books.

Subsequently, the Applicant filed a claim with the Municipal Court in Gjilan asking for the invalidation of the sale of immovable property from the aforementioned mortgage agreement according to the decision of the Municipal Court in Gjilan as well as to invalidate the contracts entered after the public sale of immovable property from the mortgage agreement.

The Basic Court dismissed as unfounded the applicant’s statement of claim, asserting that the legal norm which the applicant has called upon  does not apply in this case.

The Court of Appeal rejected the Applicant’s appeal as unfounded and upheld the verdict of first instance of the Municipal Court.

The Supreme Court rejected as ungrounded the Applicant’s request for revision and upheld the lower court judgments.

The Applicant alleges that the regular courts have misinterpreted the facts and the law, which resulted in the violation of Articles 3, 24, 31,. and 46 of the Constitution, as well as Article 6 of the ECHR.

The Court concludes that the facts presented by the Applicant do not justify his allegation of the violation of his rights to a fair and impartial trial, the right to protection of property and the right to equality before the law. In fact, the Applicant has not  even proved his claim that the proceedings before the Basic Court, the Court of Appeals and the Supreme Court were unfair or arbitrary.

Therefore, the Court finds, on constitutional grounds, that the Referral is manifestly ill-founded and must be declared inadmissible.