Constitutional Court

The Applicant submitted the Referral based on the Article 113.7 of the Constitution, alleging that by the Ruling of the District Court in Prishtina AC. no. 1496/2011 dated 24 January 2012, was violated the right guaranteed by Article 46 [Protection of Property] of the Constitution of the Republic of Kosovo.

The Court noted that the Applicant, Mr. Naser Peci, was in fact the temporary representative of deceased Murat Plakolli, the debtor-warrantor of the mortgaged property. This temporary representation was appointed by the decision of the Municipal Court in Prishtina E.no.1168/10 on 21 July 2011, to to represent the deceased (mortgager) temporarily in the legal matter initiated by the creditor “Pro Credit Bank”. In this case, the Court concludess that the filing of the Referral is not in compliance with Article 113 of the Constitution because he has failed to prove that he is still an authorized party for purposes of filing this referral.
In this relation, the Court refers to Rule 36.1 c) of Rules of Procedure which provides that the Court may only deal with Referrals if the Referral is not manifestly ill-founded.

The Court, with respect to the allegation of the representative, emphasized that the alleged violation of the right guaranteed by Article 46 [Protection of Property] has not been sufficiently substantiated, due to the fact that the Municipal Court in Prishtina rejected his right to appeal the decision on appointing him a temporary representative of the debtor warrantor now late Murat Plakolli, owner of the mortgaged property.

The Court recalled that it is not a court for the verification of facts. The role of the Constitutional Court is to ensure compliance with the rights guaranteed by the Constitution and other legal instruments, therefore it cannot act as a “court of fifths instance” and referred to the case Akdivar against Turkey 16 September 1996, R.J.D, 1996-IV, para. 65. At the end, the Court concluded that the the Applicant’s Referral is incompatible with the requirements of Article 113 of the Constitution as well as the requirements of Rule 36.2 (c) of the Rules of Procedure.