- The Constitutional Court
KI202/19, Applicant: Demir Krasniqi, Constitutional Review of Decision Rev. no. 263/2019 of the Supreme Court, of 26 September 2019, and Decision C.1265/2013 of the Basic Court in Prishtina, of 30 July 2014
KI202/19, Resolution on Inadmissibility, of 11 November 2020, published on 08 December 2020
Key words: individual referral, civil procedure, property dispute, right to a fair trial, right to property, manifestly ill-founded referral, inadmissible referral
The Applicant challenges the constitutionality of Decision Rev. no. 263/2019 of the Supreme Court, of 26 September 2019, and Decision C.1265/2013 of the Basic Court in Prishtina, of 30 July 2014, alleging violation of his rights guaranteed by Article 46 [Protection of Property] of the Constitution of the Republic of Kosovo, in conjunction with Article 1 of Protocol no. 1 [Protection of property] of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Initially, the Court recalled that the allegations of the Applicant for violation of the right to property were related to two sets of procedures, 1) the proposal for imposing interim measures on the statement of the claim, filed on 24 May 2013 with the Basic Court in Prishtina, and filing of another claim related to expropriation and compensation of damage, filed with the Basic Court in Prishtina on 29 May 2015.
After analyzing the allegations of the Applicant regarding the first set of procedures, the Court found that the Applicant had not exhausted all legal remedies available under the law. Whereas regarding the second set of procedures, the Court found that the allegations of the Applicant for violation of the right to property must be declared as manifestly ill-founded on constitutional grounds, because in the circumstances of the present case we were not dealing with a right to property obtained by a final court decision nor by a legitimate expectation, because the Applicant did not have an enforceable right, whereby he would prove that his right to property over the disputed immovable property has been established. The Court further held that the Applicant could not allege violation of his rights to property as the regular courts, in his case, considered only the procedural aspects of the claim rather than the merits of the case, where it could be decided in relation to ) the process of expropriation of the disputed immovable property, and 2) the compensation of the damage by MESP.
In summary, regarding the alleged violations of the rights guaranteed by Article 46 of the Constitution and Article 1 of Protocol no. 1 of the ECHR, by public authorities, the Court found that the Referral: i. in relation to the procedure of imposing the interim measure of the statement of the claim, is declared inadmissible, due to the non-exhaustion of effective legal remedies, in accordance with the requirements of Article 113.7 of the Constitution, Article 47.2 of the Law and Rule 39 (1) (b) of Rules of Procedure; ii. in relation to the procedure of filing a statement of the claim for expropriation and compensation of damage, is also declared inadmissible as manifestly ill-founded, pursuant to Rule 39 (2) of the Rules of Procedure, because the Applicant has not sufficiently substantiated his allegation for violation of the right to property.
KI – Individual Referral
Legal remedies are not exhausted, Referral is anonymous