Constitutional Court

KI69/20, Applicant: Gjergj Nikolla, Constitutional review of Judgment AC. No. 1461/15 of the Court of Appeals of 14 February 2020 

KI69/20, Resolution on Inadmissibility, adopted on 10 February 2021, published on 24 February 2021

Keywords: individual referral, civil procedure, manifestly ill-founded referral, inadmissible referral

 The Applicant challenges the Judgment [AC. No. 1461/15] of 14 February 2020 of the Court of Appeals in conjunction with the Judgment [C. No. 143/14] of 19 February 2015 of the Basic Court in Gjakova.

The circumstances of the case include a civil dispute, which is related to the stolen vehicle of the Applicant in the parking lot of the Municipality of Gjakova, which  employee was N.B. The Applicant filed a claim for damage suing the Municipality of Gjakova and the person N.B. The latter, in relation to the same case, in 2003 was found guilty of the criminal offense of irresponsible work in office defined by the Criminal Law of Kosovo. Whereas, in 2012, in the civil process, the Basic Court, by the relevant Judgment, decided that the Municipality of Gjakova and N.B., should jointly compensate the Applicant. This Judgment, however, was remanded by the Court of Appeals. In the retrial procedure, the Basic Court acquitted the Municipality of Gjakova from this obligation, while it had determined the person N.B., as responsible for the compensation of damage. Acting on the respective appeals, the Court of Appeals exempted the person N.B. of this obligation, and consequently rejected all the allegations of the Applicant. The Applicant challenges the findings of the Court of Appeals before the Court, alleging a violation of (i) Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, emphasizing erroneous interpretation of Article 154 of the Law on Obligations of 1978 and Article 14 of Law No. 03/L-006 on Contested Procedure, stating that “the reasoning of the second instance court that none of the respondents bears legal responsibility for causing the damage makes no sense at all”; and (ii) Articles 3 [Equality Before the Law], 32 [Right to Legal Remedies] and 46 [Protection of Property] of the Constitution.

In examining the Applicant’s allegations, the Court applied the standards established through its case law and that of the European Court of Human Rights, and with respect to the Applicant’s allegations (i) of violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, which is essentially related to the erroneous interpretation of the applicable law, stated that the latter reflect allegations falling into the category of “fourth instance” and as such, reflect allegations at the level of “legality” and have not been argued at the level of “constitutionality”, moreover that, in the Court’s assessment, the Court of Appeals, in the circumstances of the present case, dealt with and substantiated the Applicant’s allegations, including those related to erroneous interpretation of the provisions of the applicable law, and that, in their entirety, the proceedings before the Court of Appeals do not result to have been unfair or arbitrary; whereas as to the Applicant’s allegations (ii) of violation of Articles 3, 32 and 46 of the Constitution, the Court noted that they reflect “unsubstantiated or unsupported” allegations because the Applicant goes beyond the reference to the abovementioned articles of the Constitution, has not clearly and adequately reasoned how these articles could have been violated by the challenged Judgment of the Court of Appeals.

Therefore, the Applicant’s Referral was declared inadmissible as manifestly ill-founded on constitutional basis, as established in Article 113.7 of the Constitution and further specified in Rule 39 (2) of the Rules of Procedure.