Constitutional Court

KI145/18, Applicant: Shehide Muhadri, Murat Muhadri and Sylë Ibrahimi  Constitutional review of Decision AC. No. 530/2016 of the Court of Appeals, of 18 June 2018

KI145/18, Judgment adopted on 19 July 2019 and published on 15 August 2019

Keywords: individual referral, civil procedure, equality before the law, right to a fair trial, admissible referral, violation of Article 31 of the Constitution.

The Applicants alleged that the regular courts, by failing to recognize their right to ownership over the challenged immovable property, had violated equality before the law and Article 6 of the Convention, because “…from the same legal basis as refugees of the Republic of Albania, at the same time, the immovable property (house and land) was given for use; is also given for use to the family of E. M., A. M., A. M., A. M. and F. D. all from the village of Bregu i Zi of M. of Lipjan, then to the Bresa family from Gracka e Vogel  M. of Lipjan”. In support of their allegation, the Applicants attached three Judgments to the Referral of the former Municipal Court in Prishtina C. No. 164/2003 of 25 February 2003, C. No. 146/2009 of 12 November 2007 and C. no. 98/2010, of 21 January 2014.

The Court initially assessed whether the Referral fulfilled the admissibility requirements as set out in the Constitution and further specified in the Law on the Constitutional Court and in the Rules of Procedure of the Court. The Court considered that the Court of Appeals did not address at all the Applicants, who requested that their case be treated similarly, to other cases where other families, such as refugees coming from the Republic of Albania in 1960, acquired ownership of the challenged properties by factual possession through of the acquisition by prescription. Having assessed the proceedings in entirety that the failure to address the Applicants’ allegation constitutes an uncorrectable flaw of the Judgment and is, therefore, incompatible with Article 31 of the Constitution and Article 6 of the Convention.

In conclusion, the Court found that the Judgment of the Court of Appeals Ac. No. 530/2016 of 18 June 2018, rejecting the Applicants’ appeal, did not respect the constitutional standard of reasoning of the judicial decision. Accordingly, the Court finds that there has been a violation of Article 31 of the Constitution [Right to Fair and Impartial Trial] and Article 6.1 of the Convention [Right to a fair trial].