Constitutional Court

KI107/19, Applicant: Gafurr Bytyqi, Request for constitutional review of Decision AC-I-19-0065 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters of 6 June 2019 

KI107/19, Resolution on inadmissibility, adopted on 11 March 2020

Keywords: individual referral, manifestly ill-founded, inadmissible referral, interim measure, preliminary proceedings

The subject matter of the Referral was the constitutional review of the challenged Decision of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters, which rejected the Applicant’s request for imposition of the preliminary injunction on the disputed property, and consequently, according to the Applicant’s allegation, it violated the Applicant’s fundamental rights and freedoms  guaranteed by Articles 10 [Economy], 41 [Right of Access to Public Documents], 42 [Freedom of Media], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 53 [Interpretation of Human Rights Provisions] and 54 [Judicial Protection of Rights] of the Constitution.

The Applicant’s main allegation submitted to the Court is the imposition of an interim measure for prohibition of the sale of a property for which the Privatization Agency of Kosovo had initially notified the bidder with the highest price offered, and then  announced that the tender for the case in question had been canceled in accordance with the Tender Rules of the Privatization Agency of Kosovo.

In assessing the Applicant’s allegations of violation of Article 31 of the Constitution, the Court initially assessed the applicability of this Article in respect of Article 6 of the European Convention on Human Rights, in the circumstances of the present case, taking into account  that they are interrelated with the request for preliminary injunction, and consequently fall into the category of  the “preliminary proceedings”, and in which, based on the case law of the European Court of Human Rights, the guarantees embodied in the abovementioned articles, in principle, are not applicable. In this context, the Court elaborated on the general principles of the case law of the ECtHR and the Court regarding the applicability of Article 6 of the ECHR in “preliminary proceedings”, including the criteria to be met for such applicability, and thereafter apply the latter in the circumstances of the present case. In applying these criteria, the Court found that Article 31 of the Constitution in conjunction with Article 6 of the ECHR, are applicable in the circumstances of the present case.

Further, the Court addressed the Applicant’s allegations regarding Article 31 of the Constitution, and clarified that (i) the Applicant has built his case on the basis of legality, namely on the determination of facts and erroneous interpretation of the applicable law by the regular courts; moreover that (ii) all the Applicant’s allegations before this Court regarding the preliminary injunction have also been submitted before the Specialized Panel and the Appellate Panel of the Special Chamber of the Supreme Court, and they have been reviewed and reasoned by them. The Court further clarified that the Applicant does not substantiate that the applicable law in his case was interpreted in a manifestly erroneous manner and that based on the case file, it considers that this was not the case in the circumstances of the present case. Furthermore, the Court emphasized that the proceedings before the Special Chamber of the Supreme Court and the Appellate Panel, in their entirety, were not unfair or arbitrary. The Court also addressed the Applicant’s allegations regarding the violation of legal certainty, explaining that based on the case law of the Court and the European Court of Human Rights, the circumstances of the present case do not meet the criteria to result in the lack of consistency, namely  divergence in the respective case law.

Whereas, as to the Applicant’s allegations regarding Articles 10, 41, 42, 32 and 53 of the Constitution, the Court clarified that (i) the first, namely Article 10, is not part of Chapter II [Fundamental Rights and Freedoms] of the Constitution, and therefore, cannot be applied if the facts of the case do not fall within the scope of at least one or more of the provisions of the Constitution relating to “enjoyment of human rights and freedoms”; (ii) the latter, namely Article 53, only stipulates that human rights and fundamental freedoms guaranteed by the Constitution are interpreted in compliance  with the court decisions of the ECtHR, an obligation which the Court adheres to in assessing each referral before it; whereas (iii) the Applicant did not present any reasoning regarding the alleged violations of Articles 41, 42 and 32 of the Constitution, and in this respect, the Court reiterated its position that only the mention of an article of the Constitution, without clear and adequate reasoning how that right has been violated is not sufficient as an argument to activate the protection machinery provided by the Constitution and the Court.

Therefore, the Court (i) found that the Applicant’s Referral is manifestly ill-founded on constitutional basis and is to be declared inadmissible, in accordance with paragraph 7 of Article 113 of the Constitution and paragraph 2 of Rule 39 of the Rules of Procedure; and (ii) that in accordance with Article 27 of the Law and Rule 57 (4) (a) of the Rules of Procedure, the Applicant’s request for interim measure must be rejected because the latter cannot be a subject of review, as the Referral is declared inadmissible.