Constitutional Court

KI180/19, Applicant: Miloš Šćekić and Ljubica Šćekić, constitutional  review of Judgment K. No. 2169-17 of the Basic Court of 28 March 2019 

KI180/19, Resolution on Inadmissibility of 12 February 2020, published on 27 April 2020 

Keywords: Individual referral, right to property, non-exhaustion of legal remedies, resolution on inadmissibility

The Applicants submitted the Referral to the Constitutional Court because they consider that the decision of the State Prosecutor to withdraw the claim and the decision of the Basic Court to suspend criminal proceedings are contrary to Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 46 [Protection of Property], 54 [Judicial Protection of Rights] and 109 [State Prosecutor] paragraph 1 and 2 of the Constitution of the Republic of Kosovo, and Article 8 (Right to respect for private and family life), as well as Article 1 of Protocol 1 (Protection of Property) of the European Convention on Human Rights.

In fact, the Applicants filed a claim for restitution of the occupancy right over the apartment where they lived until 1999. This process ended with a final decision of the HPCC recognizing the occupancy right to Miloš Šćekić.

After the procedure of eviction the apartment from the usurper, the apartment in question was again usurped by the same person. Ljubica Šćekić filed a criminal report with the prosecution for the usurpation of the property in question. During the first hearing, the prosecution withdrew from the indictment because i) the applicant of the criminal report was not the person who was recognized the occupancy right by the HPCC decision, but his wife, ii) because the apartment did not have a property issue resolved. Accordingly, the Basic Court rendered a decision suspending the criminal proceedings, with the instruction that the applicants can initiate contested proceedings in connection with the present request, as well as the possibility to file appeal with the Court of Appeals.

The Court analyzed the Applicant’s referral and accordingly found that the Applicants have not exhausted all legal remedies related to the criminal report, more specifically, a tenancy right holder has the possibility to reopen the criminal proceedings, as well as the possibility to try to exercise their rights in the contested procedure. Moreover, the Court also noted that the Applicants did not file appeal with the Court of Appeals against the decision of the Basic Court, as it was in the legal remedy of the Basic Court.