Constitutional Court

KI163/20, Applicant: “Inter-Eminex”, constitutional review of Judgment No. AC-I-16-02560A001 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters, of 21 May 2020

KI163/20, Resolution on Inadmissibility, adopted on 18 February 2021, published on 5 March 2021

Keywords: Individual referral, enforcement procedure, invoice, request for return to previous situation, out of time referral

The Applicant alleges that the Judgment [AC-I-16-02560A001] of 21 May 2020 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo in conjunction with the Judgment [C-IV-16-0328] of 31 October 2016 of the Specialized Panel of the latter violated its fundamental rights and freedoms guaranteed by Articles 21 [General Principles] and 31 [Right to Fair and Impartial Trial] of the Constitution and Articles 6 (Right to a fair trial) and 13 (Right to an effective remedy) of the European Convention on Human Rights.

The Applicant was served with the Judgment [AC-I-16-02560A001] of 21 May 2020 of the Appellate Panel, on 2 June 2020, whereas, it submitted the Referral to the Court on 19 October 2020. Consequently, in this case it was not disputable that the Referral was submitted after the legal deadline of four (4) months established by Law and Rules of Procedure. However, the Applicant requested the Court to return to the previous situation regarding the deadline for submitting the Referral to the Court, as stipulated by Article 50 of the Law, because it considered that due to his health condition, he was not able to submit his referral within the prescribed time limit.

In this regard, the Court emphasized that it is its duty to approve or not the return to the previous situation of the deadline, based on its assessment, in each case separately, if the requirements set out in Article 50 of the Law are met and which are cumulative. In the circumstances of the present case, based on the case file, the Court found that (i) the Applicant has not proved that without its fault he was not able to file the Referral within the prescribed time limit, namely the four (4) month time limit, established in Article 49 of the Law, because while it is not disputed that the Applicant has been ill with covid-19 since August 2020, in his Referral there is no justification for the impossibility of submitting his Referral to the Court during the months of June and July 2020 and, moreover, no justification for the impossibility of submitting the referral to the Court by other co-owners or even other authorized persons of the legal entity; (ii) in the same context, the Applicant does not prove that the obstacle was removed on 10 October 2020, the date from which the fifteen (15) day deadline for submitting the Referral to the Court would begin to run, because there is no justification regarding the existence of any obstacles for submitting the referral to the Court during the months of June and July 2020; and (iii) for the same reasons, the request in question is not reasoned.

Consequently, the Court found that in the circumstances of the present case, only one of the conditions set out in Article 50 of the Law was met, namely the one-year period within which a referral can be submitted to the Court requesting to return to the previous situation, and consequently, the Court found that, in the circumstances of the present case, the requirements foreseen in Article 50 of the Law for return to previous situation have not been met, therefore, the Referral was submitted out of the deadline established in Article 49 of the Law, and consequently inadmissible for review on merits.