Constitutional Court

KI143/18 – Constitutional review of Decision Ac. No. 3248/17 of the Court of Appeals of 17 July 2018

KI143/18, Applicant Bekim Mustafa

Resolution on Inadmissibility of 8 October 2019, published on 1 November 2019

Keywords: Individual referral, manifestly ill-founded

The Applicant challenged before the Court the Decision of the Court of Appeals which rejected his appeal against a decision of the first instance court. The latter, approved as grounded the proposal for counter-enforcement of an interested party, and obliged the Applicant to enable the interested party to return within 7 (seven) days the business premises and business objects built on the immovable property, which was the subject to dispute. The initial proceedings for confirmation of ownership initiated by the Applicant’s claim and the counterclaim of an interested party – are still pending before the regular courts and were not subject to dispute before the Constitutional Court. The Court dealt with the constitutional review of Decision [Ac. No. 3248/17] of 17 July 2018 of the Court of Appeals – resulting from the enforcement proceedings initiated by the Applicant and those of the counter-enforcement initiated by the interested party.

The Applicant alleges that the Court of Appeals, by rejecting his appeal, violated his rights protected by Articles 31 and 54 of the Constitution. According to him, these two articles of the Constitution were violated by the fact that “no counter-enforcement may be required without a final decision under Article 54 par. 1.1 and par. 2 of the Law on Enforcement Procedure”.

The abovementioned allegation, the Court classified as an allegation pertaining to the field of legality, and clarified to the Applicant that, in principle, the interpretation of law is a competence of the regular courts, and that the “fairness” required by Article 31 of the Constitution, in conjunction with Article 6 of the ECHR, is not “substantive” fairness, but “procedural” fairness. This translates in practical terms into adversarial proceedings in which submissions are heard from the parties and they are placed on an equal footing before the court. In addition, the Court stated the Applicant did not prove and substantiate his allegations that the interpretation of the law by the Court of Appeals was manifestly erroneous or arbitrary and that the latter may have resulted in “arbitrary conclusions” or “manifestly unreasoned”.

Referring to its case law and that of the ECtHR, the Court has consistently reiterated that it is not the duty of the Constitutional Court to deal with errors of fact or law allegedly committed by the regular courts when assessing evidence or applying the law (legality), unless and insofar as they may have violated the fundamental rights and freedoms protected by the Constitution (constitutionality). It is the role of the regular courts to interpret and apply the pertinent rules of procedural and substantive law.

In conclusion, in accordance with Rule 39 (2) of the Rules of Procedure, the Applicant’s Referral was declared inadmissible as manifestly ill-founded on constitutional basis.