Constitutional Court

KI105/19, Applicant: Privatization Agency of Kosovo, Constitutional review of Decision AC-II.-12-0126 of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters, of 14 February 2019

KI105/19, resolution on inadmissibility, adopted on 26 March 2021, published on 13 April 2021

Keywords: individual referral, right to a fair trial, manifestly ill-founded referral

The circumstances of the present case relate to the case of the Constitutional Court KI115/16, with Applicants B. Lj., R. Lj. and AV Lj, whose Referral was declared admissible  by the Constitutional Court, and in which a violation of the right to a fair and impartial trial as guaranteed by Article 31 of the Constitution was found, because the Applicants’ main allegation in that case, concerning the time limits of the appeal filed by the PAK, was not addressed by the Appellate Panel of the SCSC.

The Appellate Panel, having decided upon the Judgment of the Constitutional Court, in the retrial decided to dismiss as inadmissible, the appeal of the Applicant [PAK] on the grounds that it was filed after the deadline under Section 9.5 of the UNMIK Regulation No. 2008/4 on the Establishment of a Special Chamber of the Supreme Court, and which deadline was 30 days.

Consequently, the essence of this case, relates to the second decision of the Appellate Panel and the time limit provided in the legal provisions on filing appeals, which are envisaged in two acts: (i) UNMIK Regulation No. 2008/4 on the Establishment of a Special Chamber of the Supreme Court (30 days), and (ii) UNMIK Administrative Direction No. 2008/6 amending and implementing Administrative Direction 2006/17, implementing UNMIK Regulation 2002/13 on the Establishment of a Special Chamber of the Supreme Court on Matters Relating to the Kosovo Trust Agency (deadline of two months).

Therefore, the Applicant makes the following main allegations before the Court: (i) the challenged decision is unreasoned, it is contradictory and without legal support, and the factual situation has not been correctly determined, due to incorrect interpretation of the time limit for filing an appeal with the Appellate Panel of the SCSC; (ii) the composition of the trial panel of the SCSC Appellate Panel was not in accordance with Law No. 04/L-033 on the Special Chamber; (iii) The Appellate Panel of the SCSC did not hold a hearing to give an opportunity to the Applicant to submit his opinion and  the Decision of the Appellate Panel was issued without obtaining the opinion of the PAK regarding the practices of the SCSC; (iv) by the challenged decision was achieved the finality of the unlawful decision of the Municipal Court in Prishtina; and, (v) The Judgment of the Constitutional Court, in case KI115/16, has not been correctly interpreted through the Decision of the Appellate Panel of the SCSC.

The court, having analysed the allegations of the Applicant, considered that the allegations of the latter raise issues of legality and the Applicant has failed to argue them on a constitutional level. Consequently, the Court, by relying on its previous practice in the same cases, found that the Applicant’s Referral is manifestly ill-founded on constitutional basis and as such declared it inadmissible, pursuant to Rule 39 (2) of the Rules of Procedure.