Constitutional Court

KI23/21, Applicant: Rabit Fazliu, Constitutional review of Decision CN.no.11/20 of the Supreme Court of Kosovo, of 26 October 2020

KI23/21, Resolution on inadmissibility, of 2 June 2021, published on 18 June 2021

Keywords: individual referral, right to a fair and impartial trial, protection of property, out of time referral

The Applicant challenges before the Court the Decision CN.no.11/2020 of the Supreme Court, of 26 October 2020, in conjunction with Decision Rev.no.45/2020 of the Supreme Court, of 9 March 2020.

The Court recalls that the essence of the case relates to a Decision of the Municipal Court in Gjilan on the basis of which it was established that N.F. the brother of the Applicant and the Applicant following the death of Applicant’s father were declared heirs in ideal parts of 1/2 of the abovementioned inherited property, which was registered in the name of E.F., the Applicant’s father. Subsequently N.F. had filed a statement of claim with the Basic Court in Gjilan for confirmation of ownership, with respect to the business premises located on the ground floor of the aforementioned immovable property. The Basic Court in Gjilan had approved the statement of claim of N.F., by ascertaining that on the basis of inheritance he is the owner of the business premises. Following the Applicant’s appeal to the Court of Appeals, the latter had rejected the Applicant’s appeal. The Applicant had filed a revision with the Supreme Court and the latter had approved the Applicant’s revision and remanded the case for retrial to the Basic Court in Gjilan. The Basic Court in Gjilan, acting in the retrial, approved the statement of claim of N.F. as grounded. Following the Applicant’s appeal to the Court of Appeals, the latter rejected the Applicant’s appeal as unfounded. The Applicant had filed a revision with the Supreme Court, and the latter rejected it as being out of time. The Applicant then addressed the Supreme Court with a request for return to previous situation, and this request was rejected as inadmissible.

The Applicant alleged that the challenged decision has violated his rights guaranteed by Article 3 [Equality before the Law], Article 22 [Direct Applicability of International Agreements and Instruments] Article 31 [Right to Fair and Impartial Trial] Article 32 [Right to Legal Remedies] Article 46 [Protection of Property] Article 54 [Judicial Protection of Rights] Article 102 [General Principles of the Judicial System] of the Constitution in conjunction with Article 6 and Article 13 of the ECHR.

In essence, the Applicant alleged before the Constitutional Court that he had submitted the revision to the Supreme Court within the deadline, but had erroneously submitted it through the Basic Court in Prishtina and not through the Basic Court in Gjilan, and according to him the Supreme Court had not taken into consideration the Applicant’s allegations.

The Constitutional Court, taking into consideration the Applicant’s appeal, the scope of legal and constitutional obligations of the regular courts and the specifics of the case, considers that the “last decision” in the Applicant’s case, within the meaning of Rule 39 (1) (c) and the case law of the Court, in the Applicant’s case, is the Decision [Rev.no.45 / 2020] of the Supreme Court, of 9 March 2020. In conclusion, according to Rule 39 (1) (c) of the Rules of Procedure, the Referral was submitted out of the deadline and is therefore inadmissible.