Constitutional Court

KI179/18, Applicant: Belgjyzar Latifi, Constitutional review of the Judgment, Rev. no. 189/2018, of the Supreme Court of the Republic of Kosovo, of 13 June 2018

KI179/18, Resolution on Inadmissibility, adopted on 24 June 2020 published on 28 July 2020

Keywords: individual referral, manifestly ill-founded referral, inadmissible referral.

The circumstances of the concrete case are related to an apartment which during the 80’s, was allocated to the interested party S.RR. by the socially owned enterprise NSH Gërmia. Afterwards, in the same apartment, had moved in another person, respectively K.O. The latter, according to the decisions of the regular courts, had moved into that apartment without a legal basis and, consequently, was obliged to vacate the same. These decisions, however, were never executed. After 1991, K.O. had managed to buy the apartment from the socially owned enterprise NSH Gërmia. In 1999 and 2000, respectively, the United Nations Mission in Kosovo issued the Regulation no. 1999/23 of 15 November 1999 on the Establishment of the Housing and Property Directorate and the Housing on Property Claims Commission and the Regulation 2000/60 of 31 October 2000 on Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission, determining, inter alia, the (i) competence of the Commission to address the claims of natural persons, whose ownership, possession or the residential  right in the immovable properties, namely apartments has been revoked after 23 March 1989 on the basis of a legislation which was discriminatory both in its application and in its purposes; and (ii) that the Commission’s final decisions are binding and are not subject to review by any other judicial or administrative body in Kosovo.

In 2000, S.RR. had addressed the above-mentioned Commission, requesting that the apartment in question be returned to him. While the dispute over the respective apartment was under review before the Commission, the Applicant, in 2001, had purchased the disputable apartment from K.O. and moved into it. In 2006, the Commission had decided that the right over the disputable apartment belonged to S.RR. and not K.O., by also requiring the Applicant to vacate the disputable apartment. The Applicant addressed to the regular courts, claiming that the right over the apartment belonged to her and that she had acquired it through legal act, namely the contract on sale with K.O.

The Basic Court rejected the Applicant’s allegations, emphasizing, among other things, three basic issues (i) the competence of the Commission to decide on the claims of persons who have lost the right to property-apartment after 23 March 1989 until 24 March 1999 as a result of discrimination and exclusion of the jurisdiction of the regular courts in this context; (ii) the right over the disputable apartment of the person S.RR .; (iii) the alleged right of ownership of the Applicant by clarifying that she had the right to request the termination of the contract on sale with K.O. The Court of Appeals and the Supreme Court upheld the findings of the Basic Court.

The Applicant challenges these findings of the regular courts before the Court, alleging violations of Article 31 [Right to Fair and Impartial Trial] in conjunction with Article 6 [Right to a fair trial] of the ECHR and Article 46 [Protection of Property] of the Constitution in conjunction with Article 1 (Protection of Property) of Protocol no. 1 of the ECHR.

The Court having examined all Applicant’s allegation, and by applying throughout this review the case law of the ECtHR, and (i) with respect to the allegations relating to Article 31 of the Constitution in conjunction with Article 6 of the ECHR, stated that the same include issues of confirmation of facts and law, and as such constitute allegations of the “fourth instance”, and are therefore inadmissible as manifestly ill-founded on constitutional basis; while (ii) as regards the allegation relating to Article 46 of the Constitution and Article 1 of Protocol no. 1 of the ECHR, the Court emphasized  that they fall within the category of “unsubstantiated and unreasoned” allegations, and consequently are also manifestly ill-founded on constitutional basis. The Court emphasized that the court proceedings which resulted in the challenged acts in the circumstances of the present case, have in their entirety, been fair and not arbitrary.

Consequently, the Court found that the referral was manifestly ill-founded on constitutional basis and declared it inadmissible, in accordance with Article 113.7 of the Constitution, Article 47 of the Law and Rule 39 (2) of the Rules of Procedure.