- The Constitutional Court
KI210/19, Applicant Sabri Ismajli, Constitutional review of Judgment KPA-A-051-2016 of the Supreme Court of Kosovo of 23 October 2019
KI210/19, Resolution on Inadmissibility, of 15 July 2020, published on 17 August 2020
Keywords: Individual referral, sale-purchase contract, right to property, exhaustion of legal remedies
The Applicant and four (4) other persons, filed a claim with the Kosovo Property Agency (hereinafter: the KPA) regarding a cadastral parcel stating that on 21 June 2007 he purchased 5/7 of the ideal part of the disputed parcel in the surface area of 3,87.34 ha. On 21 October 2014, the Kosovo Property Claims Commission (hereinafter: the KPCC) by decision KPCC/D/A/260/2014, rejected the abovementioned claims on the grounds that this dispute fell outside the jurisdiction of the KPCC, as the possession of the disputed parcel was not lost as a result of the 1998/99 conflict.
Regarding the abovementioned decision, the Applicant filed an appeal with the Supreme Court. On 23 October 2019, the Supreme Court by Judgment GSK-KPA-A-051-2016, dismissed the Applicant’s appeal filed against decision KPCC/D/A/260/2014, of 21 October 2014 as out of time.
The Applicant, despite the fact that the Supreme Court did not address his appeal against the decision of the KPCC, as the appeal was filed out of the legal deadline, requested the Constitutional Court to assess the sale-purchase contract with the person T.S. and find that he enjoys the right to property under Article 46 of the Constitution in respect of such property.
The Court assessing the admissibility criteria of the Referral, based on the case law of the ECtHR, explained that while the rule of exhaustion of legal remedies must be applied with some degree of flexibility and without excessive formalism, this obligation does not merely require also that the requests be brought before the regular courts, but also requires the Applicant before submitting the referral, a) the same allegations must have been aired before the regular courts, at least in substance; and b) in compliance with the formal requirements and time-limits laid down through the applicable law.
Therefore, taking into account the allegations raised by the Applicant of violation of Article 46 [Protection of Property] of the Constitution and the facts presented by him, the Court also based on the standards set in the case law of the ECtHR, found that the Applicant’s Referral, even though he has formally followed the court proceedings to challenge the KPCC decision, does not meet the admissibility criteria before the Court, as the Applicant has not exhausted the legal remedies regarding the alleged violations of the right to property, due to his procedural flaws, initially before the KPCC and then before the Supreme Court. Therefore, the Applicant’s Referral was declared inadmissible.
KI – Individual Referral
Legal remedies are not exhausted