Constitutional Court

KI26/19, Applicant: Xhavit Thaqi, owner of company „PTP INTERBAJ“ Constitutional Review of Decision Ac. No. 3480 of the Court of Appeals of Kosovo of 24 September 2018 as well as two Notifications of the Office of the Chief State Prosecutor KMLC. No. 162/2018 of 14 November 2018 and 3 December 2018  

KI26/19, resolution on inadmissibility of 7 October 2020 published on 10 November 2020 

Keywords: individual referral, right to a fair trial, resolution on inadmissibility, premature referral

Based on the case file, it follows that the Applicant was the owner of the company PTP INTERBAJ, which was engaged in the import of vehicles. During the control of the company’s operations, Kosovo Customs determined that during the company’s activity there have been violations of the customs rules, therefore, it issued a decision by which the company undertakes to pay a certain amount of money to Customs.

The Applicant, dissatisfied with the decision of the Customs, filed a complaint with the second instance body of Customs, which was rejected. In the meantime, the Customs submits to the Basic Court a proposal for execution against the Applicant, which is approved by the Basic Court.

The criminal proceedings initiated by the Customs against the Applicant are dismissed by the Basic Court as statute-barred, and the Customs are sent to contested proceedings regarding the property claim.

The Applicant filed an objection with the Basic Court against the Decision on allowing the execution of the Basic Court. This procedure ended with the Decision of the Court of Appeals, which rejected the appeal against the execution of the Basic Court as ungrounded. In the meantime, the Applicant twice filed a request for protection of legality with the State Prosecutor, which he rejected, stating that there was no legal basis for its submission.

The Applicant alleges that the challenged decisions of the Basic Court E. No. 1330/10 of 20 November 2012 and E. No. 1330/10, of 27 June 2018, Decision Ac. No. 3480/18 of the Court of Appeals, as well as the two decisions of the State Prosecutor’s Office violate his rights and freedoms guaranteed by Article 3 [Equality Before the Law], Article 24 [Equality Before the Law], Article 31 [Right to Fair and Impartial Trial], Article 32 [Right to Legal Remedies], and Article 54 [Judicial Protection of Rights] of the Constitution, as well as Article 6 (Right to a fair trial), Article 13 (Right to an effective remedy) and Article 14 (Prohibition of discrimination) of the ECHR.

The Court, after examining the Referral and analyzing the appealing allegations, concluded that the regular courts had complied with their obligation under Article 31 of the Constitution as well as Article 6 of the ECHR, with regard to procedural guarantees. The Court also concluded that the Applicant was not a victim of discrimination in relation to unequal treatment. Therefore, the Court rejected this part of the Applicant’s Referral as ungrounded in accordance with paragraph 2 of Rule 39 of the Rules of Procedure.

With regard to the contested procedure initiated by the Kosovo Customs after the statute of limitations of the criminal offense, the Court rejected it as premature in accordance with Article 113.7 of the Constitution, Article 47 (2) of the Law and Rule 39 (1) (b) of the Rules of Procedure, because the proceedings are pending before the Court of Appeals.