Constitutional Court

KI144/17, Applicant: Feti Islami, Constitutional review of Decision Rev. no. 194/2017 of the Supreme Court of Kosovo, of 11 October 2017

KI 144/17, Resolution on inadmissibility of 23 March 2018, published on 7 May 2018

Key words: individual referral, ratione materiae, res judicata, ill-founded

The Applicant files his referral with the Constitutional Court for the third time.

On 25 January 2011, the Constitutional Court by Resolution on Inadmissibility rejected Referral KI11/10 as inadmissible. The Court found that the Applicant submitted a Referral after the expiration of a period of 4 months, provided for in Article 49 of the Law.

On 13 March 2014, the Constitutional Court by Resolution on Inadmissibility rejected as a manifestly ill-founded Referral KI205/13.

The Applicant sought through a new proceeding to reopen the proceedings completed by the Judgment [C. no. 195/05] of the Municipal Court in Peja, of 26 May 2006.

On 11 October 2017, the Supreme Court, by Decision [Rev. no. 194/2017] rejected the Applicant’s request for reopening the proceedings completed by Judgment [C. no. 195/05] of the Municipal Court in Peja, of 26 May 2006, as an ungrounded.

The Applicant alleged that, “[…] the judges did not allow the case review in a transparent manner; that the decisions were unilaterally rendered out of the court hearings”.

The Court found that the Applicant basically repeats the allegations he made in the two previous referrals that he had submitted to the Constitutional Court concerning: 1) the incorrectly established factual situation for the expropriation of property; and 2) unlawful annulment [Judgment C. no. 54/01 of 30 March 2001] of the Municipal Court in Peja. Furthermore, the Court found that these allegations have already been adjudicated in accordance with Article 116 of the Constitution, and therefore, the Court notes that they should be summarily rejected in accordance with Rule 32 § 5, since these allegations are repetitive of the previous referral adjudicated by the Court.

The Court considers that the Applicant’s complaints against the refusal of regular courts to repeat the contested proceedings and to “allow the review of the case in a transparent manner” at a public session are, as such, ratione materiae incompatible with Article 31 of the Constitution in conjunction with Article 6 § 1 of the Convention.

The Court emphasizes that the ratione materiae compatibility of a Referral with the Constitution derives from the Court’s substantive jurisdiction. The right upon which the Applicant relies must be protected by the Constitution in order for a constitutional complaint to be compatible ratione materiae with the Constitution. However, the Constitution does not guarantee the Applicant the right to have proceedings reopened or repeated.