- The Constitutional Court
KI86/18, Applicant: Slavica Đordević, Constitutional review of Decision CA. No. 2093/2017 of the Court of Appeals, of 29 January 2018
KI86/18, Judgment, of 3 February 2021, published on 11 March 2021
Key words: individual referral, right to fair and impartial trial, protection of property, right to legal remedies, admissible referral, violation of constitutional rights
Based on the case files, it appears that in 1997, the Applicant had started the construction of a residential building in the construction plot no. 65 C, part of cadastral parcel no. 7140/1, in Prizren, works which later were interrupted as a result of the war in Kosovo. After 1999, the parcel in question was usurped by B.M. The latter had built two more floors over the existing construction of the residential building which was under construction started by Applicant, but had not managed to finish.
Following these developments, the Applicant in her capacity as owner had filed a claim with the Housing and Property Claims Commission for the restitution of the disputed property into her possession.
By the Decision of the Housing and Property Claims Commission was confirmed that the Applicant: (i) enjoys the right to use the property that is the main subject matter of the dispute in this case; and that (ii) the property in question must be restituted into her possession within 30 days after the Decision of the Housing and Property Claims Commission becomes final.
As the property in question had not been vacated by the person who had usurped it, the Applicant addressed the Municipal Court in Prizren with a claim that the property in question be returned to her into repossession. The Municipal Court in Prizren, by Judgment [C. no. 462/10] had approved the claim, a Judgment which was upheld by the District Court and the Supreme Court.
Following the completion of the above mentioned proceedings for confirmation of ownership before the regular courts, the Applicant filed a request for enforcement of Judgment [C. no. 462/10] of the Municipal Court, of 21 December 2011, a request that was approved by the Basic Court and the Court of Appeals. Regarding the enforcement of the Judgment of the Municipal Court, a construction company was appointed, which had set an amount of 19,495.42 Euros for the demolition of the floors that B.M. had built on the Applicant’s property, after usurping it in 1999.
The Applicant had requested to be exempted from the payment of enforcement expenses, referring to her difficult financial situation and inability to pay the amount of 19,495.42 Euros. The Basic Court in Prizren rejected such a request on the grounds that since the debtor, B.M., had not deposited the necessary amount required for the execution of works related to the demolition of the building, on the grounds that it is a rule to pay in advance those expenses by the creditor, namely the Applicant in the circumstances of the present case. The Basic Court had requested a legal opinion from the Supreme Court as to how to act in the situation when the debtor does not pay the costs, while the creditor is not financially able to pay for them. The Supreme Court, referring to Article 13 of the Law on Enforcement Procedure, had stated that the expenses of the procedure related to the appointment and execution of the enforcement are paid in advance by the creditor, namely the Applicant in this case. Finally, the Basic Court based mainly on the legal opinion of the Supreme Court obliged the Applicant to pay the enforcement expenses in advance, stating that if she does not pay them then the Basic Court will suspend the proceedings in this case. This Decision of the Basic Court was upheld and considered fair by the Court of Appeals.
The Applicant, before the Court, challenges the last two decisions, the decision of the Basic Court and that of the Court of Appeals, respectively, which resulted in the suspension of the enforcement procedure.
The Applicant alleges that her constitutional rights guaranteed by Article 22 [Direct applicability of International Agreements and Instruments]; Article 24 [Equality before the Law]; Article 31 [Right to Fair and Impartial Trial]; Article 32 [Right to Legal Remedies]; Article 46 [Protection of Property] of the Constitution of the Republic of Kosovo as well as the relevant articles of the European Convention on Human Rights, Article 6 paragraph 1 [Right to a fair trial]; Article 13 [Right to an effective remedy]; Article 1 of Protocol no. 1 of the ECHR [Protection of property]; Article 14 [Prohibition of discrimination], as well as the relevant articles of the Universal Declaration of Human Rights, namely Article 2, Article 8, Article 10 and Article 17, have been violated. The Applicant requested that her identity not be disclosed, without giving any specific reason for this request.
The Applicant, in essence, alleges that in relation to this case there is a final decision, namely Judgment P.nr.462/10 of the Basic Court in Prizren, of 21 December 2011, which became final on 19 May. 2012, and which has not yet been enforced despite ongoing efforts.
Regarding Article 46 of the Constitution, the Applicant alleges that the abandonment was due to the force majeure (vis major), and not by her voluntary actions. From that moment on, she has been objectively obstructed from using her property, and after more than 19 years, she has been denied access to the property in question. According to her, due to the ineffective and inefficient work firstly of the Housing and Property Claims Commission, and thereafter of the regular courts, harmful consequences were created which the complainant as a property owner is suffering. By this, the institutional mechanisms for the protection of the inviolable right to property, guaranteed by the existing framework of legislation, are powerless to enable her access to property and protection of the peaceful enjoyment of property.
The Court in this case found that there are two final decisions, namely the decision of the Housing and Property Claims Commission, of 30 April 2005, regarding the right to use the property that is the subject matter of the dispute as well as Judgment P.br.462/10 of the Municipal Court, of 21 December 2011, which became final on 19 May 2012, whereby it ordered respondent B.M. to vacate the usurped property and restore it to previous condition by removing all works he performed on the property in question.
The Court found that the non-enforcement of the Decision of the Housing and Property Claims Commission, of 30 April 2005, and Judgment P. br. 462/10 of the Municipal Court, of 21 December 2011, as well as the suspension of the latter in enforcement proceedings by the Basic Court in Prizren by closing the enforcement procedure, in the case of the Applicant, constitutes a violation of Article 31 of the Constitution in conjunction with Article 6.1 of the ECHR.
The Court also concluded that the inability to take further legal action to enforce the Decision of the Housing and Property Claims Commission, of 30 April 2005, and Judgment P. br. 462/10 of the Municipal Court, of 21 December 2011, also constitutes violation of Articles 32 and 54 of the Constitution and Article 13 of the ECHR.
In addition, the Court finds that as a result of non-enforcement of the final and binding decision, the Applicant was unjustly deprived of her property. In this way, the Applicant’s right to peacefully enjoy her property was violated, as guaranteed by Article 46 of the Constitution, and Article 1 of Protocol No. 1 of the ECHR.
Finally, the Court considers that it should not deal any further with the allegations for violation of Article 24 in conjunction with Article 14 of the ECHR, because such allegations and claims have been consumed by the findings of the Court for violation of Articles 31, 32, 54 and 46 of the Constitution in conjunction with Article 6.1 of the ECHR and Article 1 of Protocol No. 1 of the ECHR.
The Court rejected the request of the Applicant for non-disclosure of identity because the Applicant did not specify the reason regarding this request.
KI – Individual Referral
Violation of constitutional rights
Article 31 - Right to Fair and Impartial Trial, Article 32 - Right to Legal Remedies, Article 46 - Protection of Property, Article 54 - Judicial Protection of Rights