Constitutional Court

KI40/19, Applicants Kujtim Shabani, Lulëzim Shabani, Luljeta Shabani and Alije Shabani, Constitutional Review of Decision Rev. no. 394/2018 of the Supreme Court of Kosovo, , of January 14, 2019

KI40/19, Resolution on Inadmissibility, published on 08.10.2019

Keywords: Individual referral, repetition of procedure, inheritance proceedings, manifestly ill-founded referral, ratione materiae

The Applicants submitted to the Court for the second time a Referral whereby they challenge various decisions of the regular courts. The first time, through Referral KI145/16, the Applicants challenged before the Court the Judgment [Rev. no. 263/2016] of the Supreme Court, whereby the Applicants’ revision in relation to their inheritance claim concerning a particular property, was rejected as unfounded. The Court had declared this Referral as manifestly ill-founded.

In the present Referral KI40/19, the Applicants challenged the Decision Rev.no. 394/2018 of the Supreme Court of Kosovo, of 14 January 2019, which rejected the Applicants’ request  seeking the repetition of the procedure that was completed with the Judgment [Rev. no. 263/2016] of the Supreme Court, and which had been the subject of review before the Court through Referral KI145/16.

The Applicants allege that the decision of the Supreme Court challenged by Referral KI40/19, violated the right to a fair and impartial trial guaranteed by Article 31 of the Constitution and Article 6 of the ECHR, and consequently also the right to protection of property guaranteed by Article 46 of the Constitution.

In light of the above, the Court, based on its case law and also on the case law of the ECHR, held that Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6, paragraph 1 of the Convention does not apply to the Applicant’s proposal to repeat the procedure. Consequently, the Court considers that the Applicants’ referral concerning the refusal of the regular courts to repeat the procedure is not ratione materiae pursuant to Article 31 of the Constitution in conjunction with Article 6 of the ECHR.

As regards the Applicants’ allegations of a violation of their right to protection of property guaranteed by Article 46 of the Constitution, the Court recalls that the Applicants allege that their right to protection of property has been violated as a result of violations of their right to fair trial guaranteed by Article 31 of the Constitution and Article 6 of the ECHR. Given that in relation to Applicants’ Referral, Article 31 of the Constitution and Article 6 of the ECHR do not apply to the proposal to repeat the procedure, the Court did not consider the alleged violations of Article 46 of the Constitution.

For this reason, the Court considered that the Applicants’ referral did not meet the procedural criteria for admissibility, as established in the Constitution, and as further specified by the Law and Rules of Procedure, therefore, it must be declared inadmissible.