Constitutional Court

KI206/19, Applicant: Mladen Nikolić, Constitutional review of Decision Gž. No. 659/2017 of the Court of Appeals of 21 May 2019

 KI206/19, Resolution on Inadmissibility, of 26 February 2020, published on 30 March 2020

Keywords: Individual referral, clarification of fundamental rights and freedoms guaranteed by the Constitution, inadmissible referral

1. The Applicant filed a statement of claim with the Basic Court in Gjilan (hereinafter: the Basic Court) on the ground that L.G. (hereinafter: the respondent), by opening an entrance gate in his yard for the transport of animal food, had prevented him from using the road in a peaceful and factual manner in the village of Koretishte, Municipality of Novobërdë, through which both had access to use and passage. The Basic Court by Decision P. No. 212/10, of 14 December rejected as ungrounded all the Applicant’s claims. The Basic Court, inter alia, based on the testimony of the experts in the field and the evidence provided by the witnesses in the proceedings, held that that the Applicant, the respondent and other co-villagers have been using the same road since 1990-1991, implying that the respondent is also a co-possessor of this road, and concluded that the third persons have no right to prevent the respondent from using and crossing this road. Also, as a result of the Applicant’s appeal against Decision of the Basic Court, the Court of Appeals by Decision Gž. No. 659/2017 rejected the Applicant’s appeal as ungrounded and upheld the abovementioned Decision of the Basic Court.

2. The Applicant alleged that the challenged Decision of the Court of Appeals violated his rights in violation of Articles 478, 479 and 480 of Law No. 03/L-006 on Contested Procedure, which Articles refer to obstruction of possession. However, the Applicant did not accurately specify precisely what fundamental rights and freedoms guaranteed by the Constitution of the Republic of Kosovo he claims to have been violated by the challenged Decision..

3. The Court, in assessing the admissibility requirements, found that regarding the fulfillment of the admissibility requirements, the Applicant is an authorized party challenging the act of a public authority, namely Decision Gž. No. 659/2017 of 21 May 2019 of the Court of Appeals, having exhausted all legal remedies provided by law, and submitted the Referral in accordance with the deadline established in Article 49 of the Law on the Constitutional Court (hereinafter: the Law). However, the Court referring to Article 48 of the Law and Rule 39, paragraph (1) (d) of the Rules of Procedure of the Constitutional Court (hereinafter: the Rules of Procedure) found that Applicant did not specify what rights and freedoms were allegedly violated by the challenged decision of the Court of Appeals, which he challenges before the Court and therefore, declared the Applicant’s Referral inadmissible.