Constitutional Court

KI 24/18, Applicant: Jadranka Šapiċ – Request for constitutional review of the response of the Privatization Agency of Kosovo of 8 February 2018 in conjunction with Decision of PAK No. MIT014-0020 of 12 January 2011

KI24/18, Applicant: Jadranka Šapiċ Resolution of 13 December 2019, published on 17 January 2020

Keywords: Individual referral, right to fair and impartial trial, right to legal remedy, non-exhaustion of legal remedies

The Applicant in 2007 addressed the Regional Office in Mitrovica of the Kosovo Trust Agency in the capacity of a creditor from the liquidation of the Socially Owned Enterprise “Plastics” from Skenderaj to pay the monetary compensation in the amount stated in the claim, according to the Judgment P. No. 333/94 of the Municipal Court in Mitrovica of 9 August 1995, which according to the Applicant, was final.

On 12 January 2011, the Liquidation Commission of the SOE “Plastics Factory” from Skenderaj issued Decision No. MIT014-0020, which rejected the Applicant’s claim on the ground that her claim was statutory-barred. The Applicant alleges before the Court that she never received the decision until 2018, when she personally went to the PAK Regional Office in Mitrovica to take an interest in her claim, on which occasion the responsible officials explained that the abovementioned decision was mailed to her and at the same time they submitted to her the case file.

On 25 January 2018, the Applicant, through her representative, submitted a request to the Chairman of the PAK Board in Prishtina, clarifying the facts of the case and requesting him to oblige the Liquidation Commission to reconsider Decision MIT014-0020, whereas on 8 February 2018, the PAK returned the reply to the Applicant.

The Applicant alleges that these actions of PAK violated her right to use the legal remedy and ignored the fact of the legal effect of a “res judicata” decision.

Having examined the Applicant’s allegations, the facts presented in the Referral and the application of the constitutional and ECHR norms in relation to those facts, the Court found:

That even under the assumption that the Applicant understood about the existence of a decision of the PAK Liquidation Commission, which rejected her request on the ground of statutory limitation, only on 24 January 2018, when she personally went to the PAK, no legal obstacle existed to prevent or impede the Applicant from requesting the decision of the Specialized Panel of the Special Chamber of the Supreme Court on PAK-Related Matters and then if eventually dissatisfied with the decision of the Specialized Panel, the Applicant could appeal the decision to the Appellate Panel of this Chamber of the Supreme Court.

Therefore, for the reasons set out above, the Court finds that the Applicant’s Referral does not meet the admissibility requirements as the Applicant has not exhausted his legal remedies under Article 113.7 of the Constitution, Article 47 paragraph 2 of the Law and Rule 39 (1) (b) of the Rules of Procedure.

The Court also held that in the circumstances of the case where the Applicant’s Referral is premature, the Court cannot examine the allegation of a violation of the right to property guaranteed by Article 46 of the Constitution, namely Article 1 of Protocol 1 to the ECHR.