Constitutional Court

KI163/18, Applicant: Kujtim Lleshi, Constitutional review of the Notification KMLC no. 134/2018 of the State Prosecutor, of 15 October 2018, Decision AC. no. 4737/2017 of the Court of Appeals of the Republic of Kosovo, of 3 August 2018 and the Writ P. no. 224/15 of the Private Enforcement Agent, of 11 October 2017

KI163/18, Resolution on Inadmissibility, adopted on 24 June 2020

Keywords: individual referral, substantial non-exhaustion, manifestly ill-founded referral, inadmissible referral

The circumstances of the concrete case are related to a loan and mortgage agreement, the disregard of the conditions of which resulted in the initiation of enforcement proceedings by Raiffeisen Bank. In April 2012, the Basic Court by the Judgment [E.no.305/2012] allowed Raiffeisen Bank’s proposal for the debt in the amount of 803,360.62 Euros, regarding the enforcement titles, as listed in its proposal for enforcement, in respect of which both the objection and the appeal were rejected, by the Basic Court and the Court of Appeals, respectively, and the case was transferred to the Private Enforcement Agent. The latter issued the Conclusion for the sale of the respective immovable properties, a Conclusion which was revoked by the Basic Court in October 2015, following a request of the debtors for the elimination of irregularities in the enforcement procedure, ordering the appointment of an expert to determine the value of mortgaged immovable property. The expert was appointed by the Private Enforcement Agent, and following the valuation by the expert, the procedure of issuing the next Conclusions for the sale of immovable properties continued, consequently the debtors again submitted a request for elimination of irregularities in the enforcement procedure; however this request was rejected by the Basic Court and the Court of Appeals. Public sales of debtors’ immovable properties were realized in the third public session, on 6 January 6 and 11 October 2017, through the Writs [P. no. 224/15] of 6 January 2017, respectively [P. no. 224/15] of 11 October 2017, respectively, for the benefit of Raiffeisen Bank. The appeal to the Court of Appeals against these Writs and the proposal to initiate a request for protection of legality to the State Prosecutor were rejected.

The Applicant challenges these findings before the Court, alleging that the fundamental rights and freedoms guaranteed by paragraph 2 of Article 3 [Equality before the Law] and Articles 31 [Right to Fair and Impartial Trial], 33 [Principle of Legality and Proportionality in Criminal Cases], 46 [Protection of Property] and 54 [Judicial Protection of Rights] of the Constitution have been violated. The Applicant also alleges violations of the Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights.

As regards the allegation for violation of Article 31 of the Constitution, the Applicant alleges that (i) the Contract of Pledge “was not legalized or notarized”, and that consequently, according to him, the Loan Agreement was null and void, and that his wife had not given “consent to mortgage”, hence the sale of the mortgage was contrary to the Law on Property and Other Real Rights; and that (ii) the Private Enforcement Agent during the enforcement procedure “contrary to legal provisions” appointed an expert for the valuation of immovable property, who was not licensed in the territory where the enforcement procedure was being conducted and he was not included in the list of experts in the relevant field.

The Court, after assessing the Applicant’s allegations, by applying the standards of case law of the European Court of Human Rights, found that the referral is inadmissible because, (i) the allegations for violation of Article 31 of the Constitution, which are related with the nullity of the Loan and Mortgage Agreement as a result of the lack of
their “legalization or notarization” and the lack of “consent to mortgage” from the Applicant’s spouse, are inadmissible as a result of non-exhaustion of legal remedies in the substantive sense in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law, and item (b) of paragraph (1) of Rule 39 of the Rules of Procedure; (ii) allegations for violation of Article 31 of the Constitution concerning  the appointment of an expert to assess the value of immovable property by the Private Enforcement Agent are inadmissible because they are clearly unfounded on constitutional grounds, as defined by Articles 47 and 48 of the Law and paragraph (2) of Rule 39 of the Rules of Procedure; and (iii) allegations for violations of Articles 3, 33, 46 and 54 of the Constitution, as well as violations of international instruments, of the Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights, respectively, are inadmissible because they are “unsubstantiated or unjustified” allegations, and consequently, inadmissible as manifestly ill-founded on constitutional basis, as defined by Articles 47 and 49 of the Law and paragraph (2) of Rule 39 of the Rules of Procedure.