Constitutional Court

KI38/21, Applicant: MS FINANCE L.L.C. with owner Muhamet Shabani, Constitutional review of Decision Ac.no. 4311/2019 of the Court of Appeals, of 18 March 2020 

KI38/21, Resolution of   24 Septmeber 2021, published on 19 October 2021 

Keywords: individual referral, legal person, clear or apparent absence of violation, manifestly ill-founded referral

The circumstances of the present case relate to the enforcement procedure, which has started as a result of Applicant’s failure to pay a debt, despite the court settlement reached in the court between him and Company I. Consequently  the private enforcement procedure is initiated and the private enforcement agent   through the Enforcement Order  orders the Directorate for Geodesy and Cadastre in Gjilan to assign  the recording of enforcement in the public book of the respective immovable properties of  the Applicant.  Initially there is held the first session of the verbal public auction for these parcels, in which the Applicant and the bidder were absent, consequently the creditor had proposed the second session of the verbal public auction, which was postponed again by the Conclusion, because during the auction there was noticed an error in the parcels. Consequently, the private enforcement agent replaced the two parcels with parcel P-70403033-02444-9  for which there was held the second public verbal auction which was attended by the private enforcement agent, Company I, and the bidder while the Applicant was again  absent. This immovable property was consequently sold to the bidder for the amount of 1/3 of the value. The Applicant had appealed to the Court of Appeals, which thereafter had decided to reject the appeal as unfounded.

The Applicant alleged  violations of his constitutional right (i) to equality before the law because the private enforcement agent did not treat the parties to the proceedings equally, by giving special treatment to the creditor; (ii) the right to legal remedies because the Applicant states that he has been denied the right to legal remedies, since despite the fact that the creditor had made a proposal to expand the enforcement procedure  the private enforcement agent had not issued a new order in that respect; and (iii) the right to protection of property because the private enforcement agent has violated the enforcement procedure, on which occasion he has several times replaced the parcels  without issuing an adequate decision relating to these changes and has sold the same for 1/3 of the real value

The Court initially examined whether the Applicant’s Referral was filed within the deadline, while based on the case file and the fact that it could not be confirmed when the Applicant has received the Decision of the Court of Appeals, the Court considered that the deadline begins to run from the day on which the Applicant has made a request to the private enforcement agent seeking the provision of relevant documents. Therefore the Referral was considered to be within the deadline

Secondly, the Court based on the Decision of the Court of Appeals in relation to the allegations of the Applicant, analysed and found that this decision by having based on the provisions of the Law on Enforcement Procedure  has addressed and clarified (i) issues regarding the Order for Sale, the conclusion on the sale of the immovable property and the method of their sale; and (ii) clarified the fact that the sale of the immovable property in the session of the second auction is compliant with 1/3 of the value of the immovable property. Further, in relation to the Applicant’s appeal claim that he was not duly invited to the public auction by the private enforcement agent, the Court of Appeals considered that the service of invitations was duly effected in conformity with the Law on Contested Procedure. Consequently, the Court found that the Court of Appeals had addressed and reasoned the allegations by basing upon the legal basis concerning the enforcement procedure, as well as the issue of regular invitation according to the contested procedure.

Consequently and  based on the  clarifications provided in the published Decision, and  taking into consideration the allegations raised by the Applicant and the facts presented by him, as well as the reasoning of the Court of Appeals, the Court considered that the Applicant’s allegations are manifestly ill-founded on constitutional basis due to “clear or apparent absence of a violation” as defined by Rule 39 (2) of the Rules of Procedure.