Constitutional Court

KI48/20 Applicant: N.N.P. “Kristal”, Constitutional Review of the Resolution CML. no.14/2019 of the Supreme Court of Kosovo, of 18 November 2019

KI48/20, Resolution on Inadmissibility of 29 March 2021, published on 7 May 2021

Keywords: Individual referral, fair and impartial trial, enforcement procedure, contested procedure, hearing session, inadmissible referral

In the circumstances of the present case, the Applicant and the debtor “Dukagjini Invest” had a dispute regarding the additional works that are allegedly unpaid by the debtor. The Applicant addressed the Office of the Private Enforcement Agent in order to allow for the enforcement procedure based on the authentic document. Following the debtor’s appeal, the disputed case was adjudicated by the regular courts, which had upheld the debtor’s appeal and rejected the Applicant’s proposal to allow the enforcement order.

Meanwhile, the Applicant submitted the Referral to the Court alleging that his fundamental rights and freedoms guaranteed by Articles 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution) in conjunction with Article 6 of the European Convention on Human Rights (hereinafter: the ECHR) and Article 10 of the Universal Declaration of Human Rights (hereinafter: the UDHR). The Applicant’s central allegation was the erroneous application of the law by the regular courts because according to him, the regular courts should have applied the law on contentious procedure and not the law on enforcement procedure. The Applicant also requested that a hearing be held in accordance with Rule 42 [Right to Hearing and Waiver] of the Rules of Procedure.

The court found that it did not notice any apparent arbitrary application of the law or facts, a clearly unreasonable conclusion of the proceedings or even a lack of logical relationship between the established facts and the application of the relevant legal provisions to those facts. Indeed, from the challenged decisions of the regular courts, the Court considered: (i) the Applicant, with his free will and conviction, had initiated the enforcement procedure by addressing the Private Enforcement Agent, in order to allow the enforcement procedure based on an “authentic document”; (ii) the regular courts have explained why the invoices “no. 1/2018” and “no. 2/2018” are not a suitable document for enforcement explaining the conditions that must be met by law in order for a document to be considered enforceable; (iii) they have explained and interpreted the purpose of the enforcement proceedings which is a matter of legality and consequently within their scope; and, (iv) they have interpreted and explained the purpose of Article 29.1.3 of the LEP and Article 71.1.3 of the LEP regarding the prohibition of the enforcement of obligations that have been paid but which have been waived; which is also a matter of legality and consequently within their scope.

The Court found that the Referral is manifestly ill-founded on constitutional grounds, and must be declared inadmissible, as stipulated by Article 113.7 and Article 21.4 of the Constitution, Article 47 of the Law and Rule 39 (2) of the Rules of Procedure. The court also rejected the request for an oral hearing pursuant to Article 20 of the Law.