Constitutional Court

KI172/20, Applicant: Xhevdet Metaj, Constitutional review of Judgment  Rev. No. 44/2020 of the Supreme Court of 11 February 2020

KI172/20, Resolution on inadmissibility, of 12 April 2021, published on 29 April 2021

Keywords: individual referral, right of pre-emption, manifestly erroneous application of law, apparent or evident absence of violation, fourth instance, manifestly ill-founded referral

The circumstances of the present case relate to the alleged right of the Applicant to pre-emption of a parcel, which is located in Bellopojë, a part of it neighboring with the parcel of the Applicant, and which the respective owner had sold to a third person in 2014. The Applicant, through the regular courts claimed that he has the right to pre-emption of the property. The Basic Court had initially established the Applicant’s right to pre-emption of the disputed parcel, annulling the Purchase and Sale Contract of 2014, thus based on the Law on Transfer of Real Property of 1988. Following the third party’s appeal, the Court of Appeals, and then the Supreme Court modified the decision of the Basic Court, and by the relevant Judgments reasoned that in the dispute that arose in 2014, the Law on Property and Other Real Rights of 2009 was applicable and not the Law on Transfer of Real Property of 1988, and that unlike the latter, the former does not contain provisions guaranteeing the right of pre-emption of the neighbor’s immovable property, unless such a right derives from a contract written in between the respective parties. These Judgments were challenged by the Applicant before the Court, alleging in essence a violation of Article 31 of the Constitution and Article 6 of the European Convention on Human Rights on the grounds of  the manifestly erroneous and arbitrary application and interpretation of the law, namely (i) applying the wrong law in the circumstances of his case; and (ii) violation of legal provisions, namely those established in the Law on Transfer of Real Property, the Law on Property and Other Real Rights and the Law on Obligational Relationships.

The Court initially examined the Applicant’s allegations related to his allegation of applying the wrong law in the circumstances of the respective dispute, namely the Law on Property and Other Real Rights of 2009 and not the Law on Transfer of Real Property of 1988, as the Basic Court had initially done. In this context, the Court first elaborates on the general principles of the case law of the European Court of Human Rights regarding the manifestly erroneous or arbitrary application and interpretation of the law and then applied the latter in the circumstances of the present case. Applying the case law of the European Court of Human Rights, the Court found that the Court of Appeals and the Supreme Court, in fact applied the correct law in the circumstances of this case, namely the Law on Property and Other Real Rights of 2009 and that consequently, the regular courts have not applied and interpreted the law in a manifestly erroneous or arbitrary manner.

As to the allegations of erroneous interpretation of the provisions of the applicable law, namely the Law on Property and Other Real Rights and the Law on Obligations, the Court noted that the regular courts addressed these allegations and stated that based on applicable laws, the Applicant’s pre-emption right could be acquired on the basis of the contract, which in order to be valid against third parties, must have been registered in the Register of Immovable Property Rights, which is not case in the circumstances of the present case.

Therefore, the Court found that the allegations of (i) the application of an erroneous law in the circumstances of his case, namely the Law on Transfer of Real Property of 1988, instead of the Law on Property and Other Real Rights of 2009, are manifestly ill-founded in “apparent or evident absence of violation”; whereas (ii) erroneous interpretation of the provisions of the applicable law, are also manifestly ill-founded on constitutional basis as allegations of “fourth instance”. Therefore, and finally, the Court found that the Referral is manifestly ill-founded on constitutional basis and is declared inadmissible, in accordance with paragraph 7 of Article 113 of the Constitution, Article 47 of the Law and Rule 39 (2) of the Rules of Procedure.