- The Constitutional Court
KI69 / 19, Applicant Nazim Kolukaj, constitutional review of Decision Rev. no. 360/2018 of the Supreme Court, of 26 November 2018
KI69/19, Resolution on Inadmissibility of 22 July 2020, published on 10 September 2020
Keywords: individual referral, right to fair trial, out of time, request for public hearing, resolution on inadmissibility
On the basis of the case file it results that the Applicant, and the persons F.K., Z.K., filed a claim with the Basic Court whereby they requested the revocation of the contract of gift Vr.no.5517/2010, which they had concluded with persons B.K., Xh.K., LI.K., F.K., and R.K., on 22 July 2010, at the Municipal Court in Prizren.
On 13 April 2017, the Basic Court issued the Decision C. no. 1335/16, by which the claim of the Applicant and persons F.K., Z.K., is considered withdrawn, stating that the court scheduled a main hearing session, which was not attended by the authorized representative of the claimants, attorney at law Ibrahi Dobruna, although there was evidence in the case file that he was duly summoned, and he did not justify his absence.
The Applicant’s authorized representative filed an appeal with the Court of Appeals, which was rejected as unfounded. In addition, the Applicant submitted a request for review to the Supreme Court, which was rejected as inadmissible by the Supreme Court.
The Applicant considered that the regular courts had not carefully examined the case, had not taken into account the obvious evidence presented by the claimant, and finally, „thereby apparently committed procedural violations, when deciding to consider the claim withdrawn.“
The Court noted that the Basic Court rejected their claim by a decision for purely procedural reasons pursuant to Article 423.3 of the LCP, without elaborating into the essence of the claim. More specifically, the Basic Court concluded that neither the Applicant nor his authorized representative appeared at the scheduled hearing, whilst, according to the case file, they were duly summoned.
As to the decision of the Supreme Courts, the Court concluded that the Supreme Court could not approve the Applicant’s request for revision of the Applicant, because as such, in a concrete sense, it cannot even be submitted to the Supreme Court, since the Court of Appeals, which in this case is the second instance the court, did not render a final decision based on the merits regarding the Applicant’s claim which concerns the revocation of the contract of gift Vr. no. 5517/2010.
The Court also found that the Applicant’s court proceeding, in fact, is concluded with the decision AC.no.2289/2017 of the Court of Appeals, of 23 April 2018, which according to the information received by the Court from the Basic Court, was served on the Applicant on 10 May 2018, and that nothing has prevented the Applicant to address the Constitutional Court upon receiving that decision of the Court of Appeals.
Consequently, the Court rejected the Applicant’s Referral pursuant to Article 113.7 of the Constitution, Article 49 of the Law and Rule 39 (1) (c) of the Rules of Procedure, while at the same time the request for holding a public hearing was rejected pursuant to Article 20 of the Law.
KI – Individual Referral