Constitutional Court

KI97/19, Applicant: Gëzim Sadrijaj, Gazmend Sadrijaj and Hidajete Sadrijaj, Constitutional review of Judgment Rev. No. 403/2018, of the Supreme Court of Kosovo, of 8 January 2019

KI97/19, Resolution on Inadmissibility, of 8 October 2019, published on 22 October 2019

Keywords: Individual referral, right of servitude, reasoning of decision, manifestly ill-founded referral, inadmissible referral

The Referral concerned the court proceedings that were initiated following the claim of several persons for the determination of the right of permanent servitude over cadastral parcel no. 598 from the possession list 00009 CZ- Lebushë (the disputed plot), which was in the name of Fate Bobaj and in the possession of Gëzim Sadrijaj and Gazmend Sadrijaj.

The Applicants alleged that by the challenged Judgment, the Supreme Court violated their right to fair and impartial trial, guaranteed by Article 31 of the Constitution and Article 6 of the ECHR. The Applicants base their allegation of violation of the right to fair trial on, as they point out, the lack of reasoning of the challenged Judgment of the Supreme Court, in determining whether the legal requirements for acquisition of the right to permanent servitude are met. They allege that the Supreme Court, in the challenged decision, did not give sufficient reasons why it departed from its position given by Judgment No. 337/2014, where the Supreme Court requested the lower courts to determine the issue of the premises built on the claimants’ cadastral plots, because their establishment is essential to determine the right of permanent servitude in the present case.

The Court noted that initially the Supreme Court [Decision Rev. No. 337/2014] approved as grounded the revision of the Applicants (the respondents) and quashed Judgment AC. No. 3347/2013, of the Court of Appeals and Judgment C. No. 109/2014 of the Basic Court and remanded the case for retrial. The Supreme Court requested the establishment of the relevant facts to confirm the right of permanent servitude of the claimants over the contested parcel, namely whether there were any residential premises or agricultural land in the subservient parcels.

The Court notes that after the Supreme Court remanded the case for retrial, the Basic Court took actions to establish the facts of the right of servitude over the disputed parcel, namely on the basis of the site inspection and witness statements. The Court considered that the findings of the regular courts, including the Supreme Court, were reached after thorough examination of all the arguments presented by the Applicants. In this way, the regular courts, based on the findings of Decision Rev. No. 337/2014 of the Supreme Court, established the relevant facts and gave their reasoning regarding their positions.

Therefore, the Court found that the challenged Judgment Rev. No. 403/2018 of the Supreme Court is clear and properly addresses the issues raised by the Applicant regarding the establishment of relevant facts to determine the right of permanent servitude over the disputed parcel. The reasoning given by the Supreme Court meets the standards of a reasoned decision elaborated above and therefore did not infringe Article 31 of the Constitution and Article 6 of the ECHR. Therefore, the Referral was declared manifestly ill-founded on constitutional basis and, as such inadmissible, in accordance with Rule 39 (2) of the Rules of Procedure.