Constitutional Court

KI21/18, Applicant Jakup Siqani, Request for constitutional review of Decision CN. No. 10/2017 of 13 November 2017 of the Supreme Court of the Republic of Kosovo and Decision Ac. No. 1298/2016 of 21 August 2017 of the Court of Appeals

KI21/18, Resolution on Inadmissibility of 11 September 2019, published on 22 October 2019 

Keywords: Resolution on Inadmissibility, out of time

On 12 March 2007, the Applicant acting in the capacity of  buyer, concluded a contract on sale with SOE “Elektrotehna”  having its seat in Belgrade, in the capacity of the seller, concerning the immovable property located in Prishtina (hereinafter: the Contract). The said Contract was certified on the same day in the Belgrade Municipal Court under the mark “OV.no.4127/0”. On 2 December 2013, an annex to the above Contract was signed under the mark “OV.no.217987/2013” (hereinafter: the Contract Annex). It has been certified by the Belgrade Municipal Court.

The Applicant addressed the Basic Court in Prishtina with a proposal for recognition of the Contract and the respective Annex, certified by the Belgrade Municipal Court, on 12 March 2007 respectively on 2 December 2013.

The Basic Court rejected the Applicant’s request. On that occasion, the Applicant filed an appeal with the Court of Appeals, which was dismissed as unfounded by the Court of Appeals. The Applicant submitted a request for extraordinary review of the decision of the Court of Appeals, that request was rejected by the Supreme Court, stating that the “request for extraordinary review of the Decision” does not constitute a legal remedy under the applicable laws in the Republic of Kosovo, that is, pursuant to the Law on Courts and the LCP.

The Applicant addressed the Constitutional Court alleging that the challenged decision of the Supreme Court violated his fundamental rights and freedoms guaranteed by Articles 3 [Equality before the law], 7 [Values], 31 [Right to Fair and Impartial Trial], 46 [Protection of Property] and 54 [Judicial Protection of Rights] of the Constitution and Articles 6 (Right to a fair trial), 13 (Right to an effective remedy) and Article 1 0f Protocol No. 1 (Protection of property) of the European Convention on Human Rights.

At the very beginning of the assessment of admissibility, the Court determined whether the Applicant’s Referral fulfilled all the admissibility requirements established in the Constitution and the Rules of Procedure. In that respect, the Court had to determine, inter alia, whether the Applicant’s Referral was filed within the deadline.

When assessing whether the requirements established through Article 49 of the Law in conjunction with Rule 39 (1) (c) of the Rules of Procedure have been fulfilled, the Court considered whether the requirement for the period of 4 (four) months provided in the Law and the Rules of Procedure is complied with in relation to “the decision of the last effective legal remedy”. More precisely, based on the case law of the Court and the case law of the European Court of Human Rights, the Court assessed whether the challenged decision, namely Decision [CN. No. 10/2017] of 13 November 2017 of the Supreme Court, was rendered as a result of the effective legal remedy, that is, if the “request for extraordinary review of the Decision” filed against the Decision [Ac. No. 1298/2016] of 21 August 2017 of the Court of Appeals, was an effective legal remedy provided by law. The Court held that this is not the case because the “request for extraordinary review of the Decision” is not a legal remedy permitted by the laws applicable in the Republic of Kosovo, and therefore, the challenged Decision of the Supreme Court is not a decision rendered as a result of the “last effective legal remedy”. This decision is in fact, Decision [Ac. No. 1298/2016] of 21 August 2017 of the Court of Appeals, and which constitutional review before the Court is out the four (4) month deadline established by the Law and the Rules of Procedure.

In view of all what is stated above, the Court found that the Referral was not submitted within the legal deadline provided by Article 49 of the Law and Rule 39 (1) (c) of the Rules of Procedure and, therefore, the Court could not consider the merits of the case, namely the Applicant’s allegations of constitutional violation.