- The Constitutional Court
KI116/20, Applicant: N.T.Sh. “Edita-S.O.K”, Constitutional review of Judgment E. Rev. No. 13/2020, of the Supreme Court of Kosovo of 6 April 2020
KI116/20, Resolution on Inadmissibility, adopted on 10 February 2021, published on 3 March 2021
Keywords: individual referral, manifestly ill-founded referral, erroneous interpretation of law, inadmissible referral
The Applicant before the Court challenges the Judgment [E. Rev. No. 13/2020] of 6 April 2020 of the Supreme Court in conjunction with Judgment [Ae. No. 186/2018] of 21 October 2019 of the Court of Appeals and the Judgment [IV. EK. C. No. 105/16] of 8 June 2018 of the Department for Commercial Matters of the Basic Court in Prishtina.
The circumstances of the present case are related to a Contract which the Applicant had concluded with “ARS Beton” l.l.c., for the sale and purchase of a vehicle/excavator. Based on this Contract, “ARS Beton” l.l.c., was obliged to compensate the Applicant the contracted amount, initially until 15 December 2009, and then, according to the agreement between the parties, until 24 December 2012. Considering that this did not happen, the Applicant filed a claim for return of debt with the Basic Court. The latter rejected the claim of the Applicant, on the grounds that it was statute-barred. By the appeal of the Court of Appeals, inter alia, the Applicant alleged that the statute of limitation in this case was interrupted, taking into account the fact that part of the payment was made on 24 December 2012, while on 2 July 2018, the Applicant through a statement accepted the debt. This statement was submitted by the Applicant to the Court of Appeals, through a submission at the time the appeal was under consideration. The Court of Appeals rejected the Applicant’s appeal, stating also that the deadlines for filing his claim were statute-barred, moreover, that the relevant statement for recognition of debt submitted to the Court of Appeals did not meet the requirements set out in Article 180 of Law No. 03/L-006 on Contested Procedure, to be accepted as evidence. The Supreme Court upheld the Judgment of the Court of Appeals, rejecting the Applicant’s request for revision as ungrounded. The Applicant challenged the findings of the regular courts before the Court, claiming that they are contrary to his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution, stating, inter alia, that the Court of Appeals rejected his appeal, contrary to Article 180 of the Law on Contested Procedure, otherwise it would be established that the statute of limitations under Article 387 of the Law on Obligations of 30 March 1978 had been interrupted, and consequently his claim should have been considered on its merits.
The Court, after assessing the Applicant’s allegations, inter alia, stated that all regular courts had dealt with the issue of statute of limitations of the Applicant’s claim, stating that (i) The contract between the parties was concluded on 30 September 2009, while the Applicant filed the claim on 2 February 2016, out of three (3) year deadline stipulated by Article 374 of the Law on Obligations of 1978, applicable in the circumstances of the present case; (ii) even if the Applicant’s claim was taken into account that on 24 December 2012, a part of the payment was made, and consequently the statute of limitations was interrupted, the claim is still statute-barred, because since 24 December 2012, when allegedly a part of the payment was made, until 2 February 2016, when the claim was filed, more than three (3) years have passed; and finally (iii) that the statement of “acceptance of debt” submitted to the Court of Appeals on 2 July 2018, was not submitted in accordance with the requirements of Article 180 of the Law on Contested Procedure and moreover, after the deadline for filing the appeal.
Consequently, applying the standards of its case law and that of the European Court of Human Rights, the Court found that the Referral is inadmissible, because the Applicant’s allegations of violation of Article 31 of the Constitution are manifestly ill-founded due to “apparent or evident absence of violation”, and consequently 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.
Referral is manifestly ill-founded