Constitutional Court

KI70/20, Applicant, Rasim Shabani and others, Constitutional review of Decision [Rev. no. 28/2020] of the Supreme Court, of 11 February 2020. 

Keywords: individual referral, violation of Articles 31 and 46 of the Constitution in conjunction with Article 6 and Article 1 of Protocol No. 1 of the European Convention on Human Rights  

It is noted from the case file, that the circumstances of the present case are regarding the expropriation of the property of the Applicants, by the Department of Urbanism, Geodesy, Cadastre and Property of Municipality of Fushe Kosove, by Decision No. 58, respectively by the Supplementary Decision [06.No. -58/2] referring to Article 15 of the Law on Expropriation, in order to provide land to Prishtina International Airport. In the administrative procedure conducted at the Municipality of Fushe Kosove, no agreement has been reached between the parties on compensation for the value of the expropriated immovable property. As a result, on 7 October 2005, the case was referred to the Municipal Court in Prishtina for resolution.

The Municipal Court in Prishtina initially terminated the procedure by the Decision [N.no. 498/2005] of 27 June 2012, due to the death of the person filing the proposal, respectively the owner of the expropriated parcel and decided that the procedure shall continue with the proposal of the parties. After some time, respectively on 13 May 2014, the Applicants, in the capacity of legal heirs of SH.SH., declared by Decision [O.no. 380/11] of the Municipal Court in Prishtina, Branch in Gracanica, addressed Basic Court in Prishtina, that the terminated procedure be continued by requesting the appointment of an expert to determine the market price value of the expropriated property. The request for the appointment of an expert was approved by the Basic Court in Prishtina, which by Decision [N. no. 498/05] of 26 February 2015, based on Article 13 of the Law on Expropriation of 22 November 1986 and the expertise of the expert, ordered that the Applicants be reimbursed by Prishtina International Airport “Adem Jashari” in the name of expropriation in the amount of 490.568.00 € (four hundred ninety thousand five hundred and sixty eight euros), with interest applied by banks for term deposits over 1 (one) year, without destination from 11 August 2014. After the appeal from Prishtina International Airport “Adem Jashari” to the Court of Appeals, the latter by Decision [Ac. No. 2090/15] of 14 October 2019 rejected the appeal of Prishtina International Airport “Adem Jashari” and at the end upheld the decision of the Basic Court in Prishtina. The Applicants filed a revision to the Supreme Court against the decision of the Court of Appeals regarding the adjudicated interest alleging erroneous application of substantive law, respectively erroneous application of the law by the regular courts because in the case of interest calculation, the legal provisions that were in force at the time of issuing the challenged decision, were not applied, respectively the Applicants allege erroneous application of the law because when determining the interest by the Basic Court in Prishtina, Article 16, paragraph 2, point 2.2 of Law No. 03/l-139 on the Expropriation of Immovable Property, of 8 May 2010, as amended and supplemented by Law No. 03/l-205, on 10 December 2010, was not applied, which article according to them determines the percentage of interest rate for expropriated property, of 7%, simple annual interest and which is capitalized on annual basis. Failure to apply this article, respectively the interest rate of 7% (seven percent) in their case, the Applicants had raised as an allegation throughout the entire court proceeding before the Supreme Court. However, the Supreme Court by Decision [Rev. no. 28/2020] rejected the Applicants’ revision as impermissible in terms of Articles 212 and 30 of the LCP. This finding of the Supreme Court and the non-applicability of interest of 7% (seven percent) in their case, the Applicants challenge even before the Court.

The Applicants alleged before the Court violation of Article 31 of the Constitution and Article 6 of the ECHR due to manifestly erroneous and arbitrary application and interpretation of law, respectively (i) non-implementation of Law No. 03/L-205 on Amending and Supplementing Law No. 03/L-139 on the Expropriation of Immovable Property, of 10 December 2010, regarding interest and (ii) erroneous application of Article 211.2 and 30.2 of Law No. 03/L-006 on Contested Procedure in the circumstances of their case, regarding the rejection of the revision by the Supreme Court.

In assessing the Applicant’s allegations, the Court considered that the allegation of erroneous application of the law regarding the determination of interest value, should be rejected as an inadmissible allegation on procedural grounds due to formal and substantial non-exhaustion of all legal remedies as required by paragraph 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law and point (b) of paragraph (1) of Rule 39 of the Rules of Procedure. While in assessing the second allegation as a result of the interpretation and application of Article 30, paragraph 2 of the LCP, the Court found that the Applicants have not sufficiently supported or argued before the Court, how this interpretation of “legal provisions” by the Supreme Court may have been “manifestly wrong” resulting in “arbitrary conclusions” or “manifestly unreasonable” for the Applicants, or how the proceedings before the Supreme Court may not have been fair or it may have been arbitrary.

Therefore, the Court found that the Applicants’ Referral is manifestly ill-founded on constitutional grounds.