Constitutional Court

KI81/19, Applicant: Skender Podrimqaku, Request for constitutional review of Decision AC-I-19-0007 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on the Privatization Agency of Kosovo Related Matters, of 14 March 2019

KI81/19, Resolution on Inadmissibility adopted on 7 November 2019, published on 9 December 2019

Keywords: individual referral, manifestly ill-founded, inadmissible referral, interim measure, pre-trial procedure.

The subject matter was the request for constitutional review of the challenged decision of the Supreme Court, which allegedly violated the fundamental constitutional rights and freedoms  guaranteed by Articles 10 [Economy], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 46 [Protection of Property], 53 [Interpretation of Human Rights Provisions], and 54 [Judicial Protection of Rights] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution).

The Applicant’s main allegation filed with the Constitutional Court is the imposition of an interim measure prohibiting the sale of a property for which the Privatization Agency of Kosovo has notified that the tender in the present case has been canceled. The interim measure was requested until the moment when the Special Chamber of the Supreme Court of Kosovo (hereinafter: SCSC) decides on the merits of his claim.

Regarding the abovementioned  allegation, the Court noted that as to the applicability of Article 6 of the Convention and Article 31 of the Constitution in the pre-trial proceedings, taking into account that the right included in the “preliminary proceedings” is a civil right and that the interim measure is decisive for the  civil right in question, the Court found that in the circumstances of the case, based on the ECtHR case law, are met the criteria for the application of the procedural safeguards established in Article 31 of the Constitution, in conjunction with Article 6 of the ECHR.

The Court found that the allegations and arguments raised by the Applicant do not show that the proceedings before the Specialized Panel and the Appellate Panel of the SCSC were unfair or arbitrary, so that the Constitutional Court could be satisfied that the Applicant was denied any procedural guarantees, which would amount to a violation of the right to a fair and impartial trial guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR.

The Court, dealing with the Applicant’s allegations in respect of the violation of Article 46, notes that the Applicant did not specifically reason the violation of the right to property and does not specifically refer to any of the principles contained in Article 46 of the Constitution, but considers that this right has been violated as a result of a violation of the right to fair and impartial trial (Article 31 of the Constitution).

However, when considering these allegations within Article 31 of the Constitution and Article 6 paragraph 1 of the ECHR, the Court has already concluded that these allegations are manifestly ill-founded. Therefore, the Court considers that in the present case it is not proved that the Applicant has a reasoned claim regarding the violation of the property right under Article 46 of the Constitution.

As to the alleged violation of Article 10, the Court notes that this Article does not fall into the category of Fundamental Rights and Freedoms set forth in Chapter II of the Constitution. Accordingly, the allegation of a violation of this Article must be connected and substantiated with any other right provided for in the chapter II. Whereas, with regard to the alleged violations of Article 32 of the Constitution, the Court notes that the Applicant only mentioned the violation of this Article of the Constitution in his case, but did not elaborate and substantiate such allegation with arguments.

Therefore, the Referral is manifestly ill-founded on constitutional basis and is to be declared inadmissible, in accordance with Rule 39 paragraph (2) of the Rules of Procedure.

Therefore, in accordance with Rule 27.1 of the Law and Rule 57 (4) (a) of the Rules of Procedure, the Applicant’s request for interim measure is rejected, as the latter cannot be the subject of review, as the Referral is declared inadmissible.