Constitutional Court

KI114/20, Applicant: Aziz Sefedini, Constitutional review of non-enforcement: a) of Judgment C1. No. 190/07, of the Basic Court in Prishtina of 19 October 2010, and, b) of Judgment C1. No. 686/2009, of the Basic Court in Prishtina of 17 November 2011

KI114/20, Resolution on Inadmissibility of 20 October 2021, published on……

Key words: individual referral, non-exhaustion of legal remedies and without subject matter  

It follows from the case file that the essence of the Applicant’s Referral referred to two court (contested) proceedings initiated by the Applicant regarding,

1. annulment of the decision on termination of employment relationship and payment of unpaid monthly personal income for the period from 17 July 1991 to 16 June 1999, where “SOE Auto Prishtina” also appears as the responding party”,

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1. unpaid personal income for the period from 10 October 1999 to 31 December 2003, whereby the Socially-Owned Enterprise „Auto Prishtina“ (hereinafter: „SOE Auto Prishtina“) appears as respondent. 

Both of these proceedings ended with final judgments of the Basic Courts. However, the problem arose during the procedure of their enforcement. The Applicant first initiated the procedure of enforcement of Judgment C1. No. 190/07 of the Basic Court in the Privatization Agency, which was rejected, by considering that the request was out of time. The Applicant filed appeal with the Special Chamber of the Supreme Court against the decision of the Privatization Agency, requesting a reconsideration of the decision of the Privatization Agency. The Specialized Panel of the SCSC approved the Applicant’s appeal as grounded. The Privatization Agency filed an appeal with the Appellate Panel of the SCSC against the decision of the Specialized Panel. The Appellate Panel rejected the Agency’s appeal as ungrounded and ordered the Privatization Agency to enforce the judgment in accordance with the established priority.

The second enforcement procedure was initiated by the Applicant before the Privatization Agency in order to enforce final judgment C1. No. 686/2009 of the Basic Court. The Privatization Agency rejected the request for enforcement of the Applicant, stating that the request was out of time. The Applicant filed an appeal with the Special Chamber of the Supreme Court against the decision of the Privatization Agency and requested that the decision of the Privatization Agency be reconsidered. On 9 March 2021, the Specialized Panel of the SCSC rendered Judgment C-II-15-0310-C0001, rejecting the Applicant’s request for review of the decision of the Privatization Agency PRN126-0242, of 18 May 2015, as ungrounded.

On 12 April 2021, the Applicant filed an appeal with the SCSC Appellate Panel against Judgment C-II-15-0310-C0001 of the SCSC Specialized Panel, alleging violations of procedural provisions, erroneous determination of factual situation  and erroneous application of substantive law. The Court found that the proceedings concerning the Applicant’s appeal were still pending before the SCSC Appellate Panel. The Court came to this conclusion on the basis of a letter from the Special Chamber of the Supreme Court dated 15 July 2021, which arose as a result of a response to a letter sent by the Court to the Special Chamber of the Supreme Court on 14 July 2021.

The Applicant alleged before the Court that the courts violated his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution, as well as Article 6 (Right to a fair trial) of the ECHR,  by failing to enforce final judgments. In support of these allegations, the Applicant stated that in addition to the “existence of res judicata judgments, only the enforcement was stopped by unlawful actions, which is contrary to the Constitution of the country”.

The Court, considering the case file as well as the allegations of the Applicant, concluded the following. Having in mind that the procedure regarding the enforcement of Judgment C1. No. 686/2009 of the Basic Court is currently before the Appellate Panel of the SCSC, concluded that this part of the request is premature.

Regarding the enforcement of final Judgment C1. No. 190/07 of the Basic Court, the Court concluded that all decisions were in favor of the Applicant, that the decisions of regular courts have already established his rights and the competent authority that is obliged to enforce them, and accordingly, this part of the Referral was declared by the Court without subject matter.