Constitutional Court

KI112/19, Applicant: Ilir Kabashi, Constitutional Review of Decision Rev. no. 47/2019 of the Supreme Court of Kosovo, of 12 March  2019

KI112/19, Resolution on Inadmissibility, of 7 November 2019, published on 9 December 2019

Keywords: Individual referral, confirmation of ownership, interim measure, interference in the procedure, “final decision”, out of time referral

A number of court procedures were held in relation to the property that was in the Applicant’s use, in which inter alia was imposed also the interim measure to prevent the sale of the said property pending the decision on the merits of the case. The Applicant was initially recognized his status of the interferer in this procedure.

But, on 29 January 2009, the Municipal Court by a Decision had revoked the Decision [C. no. 35/04] of the Municipal Court, of 5 June 2008, which concerned the allowing of the interferer in the Applicant’s procedure, as he had not taken part in the court sessions related to the claim. On 3 November 2017, the Applicant had filed a proposal with the Basic Court in Prishtina seeking the annulment of the interim measure decided by Decision [E. no. 231/07] of 22 February 2007.

The Basic Court, by Decision [C. no. 929/15] dismissed the Applicant’s proposal for annulment of the interim measure on the grounds that he was not an authorized party to submit the proposal, as he was not a party to the proceedings related to the claim, whereas the status of the interfering party in the proceedings has been revoked by the Decision of the Municipal Court of 29 January 2009. The Court of Appeals, by Decision [Ac.no.534/18], rejected the Applicant’s appeal as unfounded and confirmed the Decision [C. no. 929/15] of the Basic Court. On 12 March 2019, the Supreme Court, by Decision Rev.no.47/2019, rejected the Applicant’s revision filed against the Decision [Ac. no. 534/18] as inadmissible.

The Applicant alleges before the Constitutional Court that the regular courts have violated his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution, and Article 6 (Right to a fair trial) of the ECHR when deciding on the proceedings of the regular courts which have dealt with his request for revocation of the interim measure in respect of the disputed parcel.

By assessing whether the Applicant’s Referral was filed within a deadline of 4 (four) months, the Court held that the “final decision” according to the case-law of the Constitutional Court and the ECHR, and which could be assessed by the Constitutional Court pursuant to Article 49 of the Law, is the Decision of the Court of Appeals [Ac. no. 534/18], of 14 August 2018, which rejected the Applicant’s appeal filed against the Decision of the Basic Court [C. no. 929/15] of 30 November 2017, and which was final and non-appealable.

The Court recalled that the Decision of the Court of Appeal [Ac. no. 534/18], was issued on 14 August 2018. Although the Applicant has not stated the date of receipt of this Decision, based on the case facts it is clear that the time elapsed between the receipt of the decision and the date of submission of his Referral to the Constitutional Court, on 2 July 2019, exceeds the time period of 4 (four) months.

Accordingly, the Court concludes that the Applicant’s Referral with respect to the Decision of the Court of Appeals [Ac. no. 534/18] has been filed after the legal deadline of 4 (four) months.