- The Constitutional Court
KI80/16 Applicant: Shinto-Petar Shindov Company, which requests the constitutional review of Order SCA-05-002 of the Special Chamber of the Supreme Court of Kosovo on Kosovo Trust Agency Related Matters of 15 September 2006
KI80/16, Resolution on inadmissibility of 5 November 2018, published on 12 December 2018
Keywords; legal person, individual referral, constitutional review of Order of the Special Chamber of the Supreme Court of Kosovo on Kosovo Trust Agency Related Matters, manifestly ill-founded
The Applicant submitted a Referral in accordance with paragraph 4 of Article 21 and paragraphs 1 and 7 of Article 113 of the Constitution, Articles 22 and 47 of the Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo and Rule 32 of the Rules of Procedure of the Constitutional Court.
The Applicant concluded a contract with the Trepca combine, based on which it delivered to Trepca a certain amount of the raw material, and as the Applicant failed to collect the debt for the delivered raw material, filed a lawsuit against the Trepca combine.
The above-mentioned procedure against Trepça was completed by the Decision of the Foreign Trade Court of Arbitration, which was upheld by the Decision of the Special Chamber of the Supreme Court of Kosovo on Kosovo Trust Agency Related Matters (hereinafter: SCSCK).
However, in the circumstances of the present case, the enforcement procedure was formally suspended by the SCSCK order, based on Regulation 2005/48 and Decision [SCA-05-002], of 9 March 2006, on the moratorium.
The Applicant addressed the SCSCK with a request for the suspension of the challenged order and for granting the enforcement of the SCSCK judgment.
Subsequently, the Applicant withdrew the request, challenging the fact that their request was registered as a new case. The SCSCK adopted this request of the Applicant by a decision and approved the withdrawal of the Applicant’s request. This is the last decision that relates to the issue raised in this case.
The Court notes that despite the fact that the enforcement of the final judgment was suspended as a result of the moratoriums established by the applicable legislation, the Applicant does not substantiate why the legal mechanism for reviewing the permissibility of this enforcement, namely the jurisdiction of the SCSCK, is not a legal remedy, which is a) sufficiently certain not only in theory, but also in practice; b) available, accessible and effective; c) able to directly remedy the alleged violations of the Constitution and the ECHR, or d) that the appropriate legal remedy will not be successful. In addition, the Court reiterates that the Applicant submitted and withdrew the request for allowing the enforcement to the SCSCK and therefore, before the SCSCK, based on the case file, it was not substantiated that there was a request for the suspension of the SCSCK order, i.e., for allowing the enforcement of the SCSCK judgment.
Therefore, for the reasons stated above, the Court finds that the Referral does not meet the admissibility requirements because the Applicant did not exhaust legal remedies under Article 113.7 of the Constitution, Article 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure, and as such, the Referral is to be declared inadmissible.
Shinto-Petar Shindov Company
KI – Individual Referral