Constitutional Court

Case no. KI91/20, Applicants: Qerim Berisha, Fadil Gashi, Tahir Morina, Selim Berisha, Naim Berisha, Burim Berisha, Z.B., Constitutional review of Judgment C.no. 131/2017 of the Basic Court in Peja – Branch in Deçan

Keywords: individual referral; usurpation of property, case without dispute

The subject matter of the case is the constitutional review of the challenged Judgment, which as alleged has violated the Applicants’ fundamental rights and freedoms guaranteed by Articles 3 [Equality before the Law], 7 [Values], 23 [Human Dignity], 24 [Equality before the Law], 35 [Freedom of Movement] and 46 [Protection of Property] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution).

In examining whether the Referral has fulfilled the admissibility criteria established in the Constitution, Law and Rules of Procedure, in relation to the person Z.B., the Court concluded that the Referral is incomplete because in respect of the same, despite two requests, no valid power of attorney has been submitted to the Court. On the other hand, in relation to the persons Selim Berisha and Naim Berisha, the Court finds that the Referral is incomplete because they are not mentioned at all in the challenged decision. Consequently, they have not proved before the Court by any act that they are persons who have a legal interest in the challenged decision in question. Consequently, the Court finds that this part of the Referral must be summarily rejected in accordance with Rule 35 (5) of the Rules of Procedure.

On the other hand (ii) In relation to the Applicants Qerim Berisha, Fadil Gashi, Tahir Morina and Burim Berisha, the Court states that the criteria established in Article 21 of the Law and Rule 32 of the Rules of Procedure are fulfilled, because for them, relevant powers of attorney have been submitted before the Court.

In this respect, the Court recalls that the Applicants request a constitutional review of the Judgment [C.no.131/2017] of the Basic Court, of 24 March 2020, which was in fact was in their favour, as through it the Applicants’ statement of claim was fully approved and the respondents H.H. and R.H. were obliged to clear the usurped part of the Applicants’ path.

The Court notes that the issue that was in question for the Applicants and for which they had submitted a Referral to the Constitutional Court, has been resolved in their favour and there is no dispute left unresolved.

Further, the Court emphasizes that in case of eventual dissatisfaction with the respective decisions in the future, the Applicants can challenge them before the Court, after the exhaustion of legal remedies.

In conclusion, the Court considers that the Applicants no longer have an unresolved case or dispute regarding the constitutionality of the challenged decision and the case is in fact without subject matter of review, hence the Referral must be dismissed, in accordance with Article 113.7 of the Constitution, and Rule 35 (4) of the Rules of