Constitutional Court

KI10/20, Applicant: Regional Water-Supply Company “Hidroregjioni Jugor” J.S.C. – Unit Malësia e Re Prizren, Constitutional review of Decision Ac. No. 4254/19 of the Court of Appeals of 28 October 2019

 KI10/20, Resolution on inadmissibility, adopted on 23 September 2020, published on 06 Ocotber 2020

Keywords: individual referral, request for interim measure, enforcement procedure, manifestly ill-founded referral, inadmissible referral

The Referral was submitted by Regional Water-Supply Company “Hidroregjioni Jugor” J. S. C.- Unit Malësia e Re Prizren, represented by lawyer Ahmet Tahiri from Prishtina.

The Applicant challenges Decision [Ac. No. 4254/19] of 28 October 2019 of the Court of Appeals in conjunction with Order [P. No. 1694/2018] of 19 December 2019 of the Private Enforcement Agent, which allegedly violate the Applicant’s fundamental rights and freedoms guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 53 [Interpretation of Human Rights Provisions], 54 [Judicial Protection of Rights] and 102 [General Principles of the Judicial System] of the Constitution and Article 6 [Right to a fair trial] of the ECHR. The Applicant relates the main allegations to violation of Law No. 05/L-043 as well as Law No. 05/L-119 on amending and supplementing Law No. 05/L-043 on Public Debt Forgiveness in Kosovo.

As to these allegations, the Court initially notes that, as a general rule, the allegations of erroneous determination of facts and erroneous interpretation of law, allegedly committed by the regular courts, relate to the scope of legality and as such, are not in the jurisdiction of the Court, and therefore, in principle, the Court cannot review them (see case of the Court No. KI06/17, Applicant L. G. and five others, Resolution on Inadmissibility of 25 October 2016, paragraph 36; case KI122/16, Applicant Riza Dembogaj, Judgment of 30 May 2018, paragraph 56; and KI49/19 Applicant Limak Kosovo International Airport J.S.C.., “Adem Jashari”, Resolution on Inadmissibility of 10 October 2019, paragraph 47). The Court has consistently reiterated that it is not its task to deal with errors of facts or law allegedly committed by the regular courts (legality), unless and in so far as they may have infringed the fundamental rights and freedoms protected by the Constitution (constitutionality). It may not itself assess the law which has led a regular court to adopt one decision rather than another. If it were otherwise, the Court would be acting as a court of “fourth instance”, which would be to disregard the limits imposed on its jurisdiction. In fact, it is the role of regular courts to interpret and apply the pertinent rules of both procedural and substantive law. (see, ECtHR case, Garcia Ruiz v. Spain, Judgment of 21 January 1999, paragraph 28; and see, also cases of the Court: KI70/11, Applicants Faik Rima, Magbule Rima and Besart Hima, Resolution on Inadmissibility, of 16 December 2011, paragraph 29; KI06/17, cited above, paragraph 37; KI122/16, cited above, paragraph 57; and KI49/19, cited above, paragraph 48).

In line with its consolidated case law, the Court further notes that the Applicant’s dissatisfaction with the outcome of the proceedings before the regular courts, namely with the decisions of the Supreme Court, the Court of Appeals and the Basic Court, or only the mere mentioning of the Articles of the Constitution, cannot in itself raise an arguable claim of violation of constitutional violations. When such violations of the Constitution are alleged, the Applicants must provide substantiated allegations and convincing arguments (see, mutatis mutandis, case Mezotur – Tiszazugi Tarsulat v. Hungary, ECtHR, Judgment of 26 July 2005, paragraph 21; and see also, case KI56/17, Applicant Lumturije Murtezaj, Resolution on Inadmissibility, of 18 December 2017, paragraph 42).

As a result, the Court considers that the Applicant has not substantiated the allegations that the respective proceedings were in any way unfair or arbitrary, and that the challenged decision violated the rights and freedoms guaranteed by the Constitution and the ECHR. In conclusion, in accordance with Rule 39 (2) of the Rules of Procedure, the Referral is manifestly ill-founded on constitutional basis and, therefore, inadmissible. Thus, as previously concluded, the Applicant’s Referral is manifestly ill-founded on constitutional basis, therefore, the Applicant’s request for an interim measure is also to be rejected.