- The Constitutional Court
KI23/19, Applicant: Agim Hoxha, Constitutional review of Decision CML. No. 45/2018, of the Supreme Court of Kosovo, of 20 December 2018
KI23/19, Resolution on Inadmissibility of 7 October 2021, published on 1 November 2021
Keywords: individual referral, interim measure, conflict of interest, out of time referral
It is noted from the case file that the creditor RBKO had submitted a proposal for enforcement at the Municipal Court in Gjakova, for the sale of the Applicant’s immovable property in order to accomplish the loan in relation to the Applicant (debtor). The Basic Court in Gjakova, with the single judge Gjokë Radi deciding upon the proposal of the creditor RBKO, has decided on the appointment of public sale of the immovable property registered in the name of the Applicant. The Applicant filed an appeal with the Court of Appeals. The Court of Appeals rejected the Applicant’s appeal and upheld the Decision of the Basic Court. In the meantime, the creditor RBKO had addressed the Basic Court with a request that “the enforcement case” be transferred to the private enforcement agent Gjokë Radi. The Basic Court with the Conclusion allowed the transfer of the enforcement case to the private enforcement agent Gjokë Radi. The Applicant addressed the Office of the Chief State Prosecutor with a proposal to submit a request for protection of legality to the Supreme Court against the Conclusion of the private enforcement agent Gjokë Radi. The Supreme Court rejected as ungrounded the request for protection of legality of the Office of the Chief State Prosecutor filed against the Conclusion of the private enforcement agent, Gjokë Radi and the Conclusion of the Basic Court. The Supreme Court, among others, reasoned: (i) with the provision of Article 245.1 of the LCP it is provided that against verdict of absolute decree the public prosecutor might raise the request for legal protection within three months (ii) that in the present case we are not dealing with a decision with which the enforcement is allowed or a decision with which it has been decided on the rejection, but in question are Conclusions against which no remedies are allowed since with them certain actions are applied and the enforcement procedure is conducted; (iii) the request for protection of legality regarding the Conclusion of the Basic Court is also out of time because it was filed after the 3 month deadline provided by the provision of Article 245.1 of the Law on Contested Procedure; and (iv) that the request for protection of legality based on Article 247 of the LCP may be submitted only due to the violence of territorial competencies, if the court of the first instance has issued a verdict without main proceeding, or if is in contradiction with the law, the public is excluded from the main proceeding.
In the proceedings before the Constitutional Court, the Applicant, among other things, alleges: (i) the state prosecutor may file a request for protection of legality even after the timeline of 3 months because this determines the principled position of the Supreme Court; (ii) to assign financial expertise for determining the actual amount of the debt in accordance with the LEP and CBK rules because the current debt includes also penalty; (iii) the mortgage contract has not been legalized in court nor it has been notarized, whereas the enforcement body is applying the enforcement only on the basis of the enforcement document; (iv) the “authentic document” on which the sale of his property is grounded, is unlawful because it has not been certified by the courts nor it has been notarized, (v) the private enforcement agent Gjokë Radi is in conflict of interest because he has adjudicated the same case as a judge, and (vi) the imposition of an interim measure.
In assessing the Applicant’s allegations, the Court referred to Article 49 of the Law and Rule 39 (1) (c) of the Rules of Procedure which stipulate that the Referral should be submitted to the Constitutional Court within the legal deadline of four (4) months from the day of the receipt of the final decision. Based on the case facts, the Court found that the Decision of the Court of Appeals and the Conclusion of the Basic Court in Gjakova were challenged in the Constitutional Court after the expiration of the 4 (four) month legal time limit established in Article 49 of the Law and Rule 39 (1) (c) of the Rules of Procedure.
The Court found that the Applicant’s allegations regarding the material aspect of the Referral KI23/19, the dual role of Gjokë Radi, as a judge and as an enforcement body, as well as the request for imposition of an interim measure, in entirety, should be rejected as out of time in accordance with Article 49 of the Law and Rule 39 (1) (c) of the Rules of Procedure.
KI – Individual Referral
Referrals is filed out of time