Constitutional Court

KI74/20, Applicant Gazmend Boshnjaku, Constitutional review of Decision NRB 70157617, of Tax Agency of Kosovo, Regional Office in Gjakova, of 10 May 2011.

KI74/20, Resolution on inadmissibility, of 14 october 2020, published on 28 October 2020

Keywords: individual referral, non-exhaustion of legal remedies, interim measure

The Applicant was the owner of the Company DPT “Euroland” in Gjakova, which he closed down on 11 May 2011 due to non-profitability.

At a certain point in time, he submitted documents in order to register his car, however, he could not do that because he did not complete all tax obligations that arose during the functioning of his company.

The Applicant submitted a request to the competent municipal body in which he requested to be issued a certificate confirming that he had no debts. The competent authority did not respond to the Applicant.

The Applicant submitted a complaint to the Ministry of Industry and Trade against the decision on the tax. The Ministry did not respond to the Applicant’s complaint.

The Applicant alleges that the decision of the „Tax Agency violates his rights and freedoms guaranteed by Article 24 [Equality before the Law], Article 31 [Right to Fair and Impartial Trial] of the Constitution, as well as Article 6 (Right to a fair trial) of the European Convention on Human Rights“. In addition, the Applicant requested from the Court impose interim measures on the decision on the tax debt so that he could register his car.

During the analysis of the Applicant’s allegations, the Court concluded that the Applicant had not exhausted all legal remedies at his disposal prior to submitting the Referral to the Court. More specificallly, provisions of Article 131 of Law No.02/L-28 on the Administrative Procedure provide for deadlines for filing appeals, as well as deadlines within which the competent body to which the appeal was filed should respond. Also, in the mentioned article, the lawmaker has provided a mechnism of protection in the form of legal remedy by which the Applicant could protect his rights if the body to which he has filed the appeal does not respond within the prescribed deadline.

Having in mind that the Applicant did not initiate court proceedings, it led to the conclusion that the Applicant  had not exhausted all legal remedies prescribed by law.

Consequently, the Court rejected the Applicant’s referral pursuant to Article 47.2 of the Law and Rule 39 (1) (b) of the Rules of Procedure. Accordingly, the Court rejected as ill-founded also the request for interim measures.