Constitutional Court

KI114/19, Nazmi Krasniqi, Request for constitutional review of Decision Rev. No. 45/219 of the Supreme Court of 7 March 2019, Decision Ac. No. 3225/2018 of the Court of Appeals of 14 September 2018, and Judgment  Ac. No. 5330/2012 of the Court of Appeals of 17 March 2015

KI114/19, Resolution  on Inadmissibility of 6 September 2019, published on 24 September 2019 

Keywords: Resolution  on inadmissibility, three court proceedings, out of deadline, ratione materiae 

The subject matter of the Referral was the constitutional review of the challenged decision of the Supreme Court, which allegedly violates the Applicant’s fundamental constitutional rights and freedoms guaranteed by Article 22 [Direct Applicability of International Agreements and Instruments], Article 24.2 [Equality Before the Law], Article 31 [Right to Fair and Impartial Trial] of the Constitution, as well as the rights guaranteed by Article 6 (Right to a fair trial), Article 8 (Right to respect for private and family life), and Article 10 (Freedom of expression) of the ECHR. The Applicant alleged „that there has been a violation of the Constitution in Decision Rev. No. 45/2019 of the Supreme Court of Kosovo of 7 March 2019, Decision Ac. No. 3225/2018 of the Court of Appeals of 14 September 2018, and Judgment Ac. No. 5330/2012 of the Court of Appeals of 17 March 2015, namely Articles 22, 24, 31 and Articles 6, 8 and 10 of the ECHR, because he was not given the opportunity to comment on the allegations raised against him.“

The Applicant alleged that there has been a violation as he was not given the opportunity to participate in the court session upon the request for repetition  of the proceedings, where it was decided to his detriment, the Applicant also added that he did not give anyone the authority to represent him, and when he was informed that there were court decisions to his detriment, he requested that the proceedings be reopened on the basis of the applicable legal provisions, which were rejected by the court decisions.

The Applicant also requested the Court to impose an interim measure in order to annul the decision of the private enforcement agent to vacate the property in question.

The Court noted that the Applicant conducted three separate court proceedings in relation to the property in question, and that all three were completed by final court judgments.

Specifically, the Court concluded that the first and second court proceedings were out of the time limit for review, while the third proceedings concerned a request for repetition of the court proceedings. The Court, having regard to the case law of the ECtHR and its case law, concluded that the third court proceeding is ratione materiae because Article 6 of the ECHR does not apply to unsuccessful attempts to reopen criminal or contested proceedings, on the basis of new facts or through an extraordinary or special review for procedural reasons, which are not directly accessible to natural persons and which enforcement depends on the discretionary powers of a specific public authority.