RESOLUTION ON INADMISSIBILITY

Transcription

1 REPUBLIKA E KOSOVEs - PEnYIiJII1KA KOCOBO - REPUBLIC Of KOSOVO GJYKATA KUSHTETUESE YCTABHI1 CY,U CONSTITUTIONAL COURT Prishtina, 5 December 2018 Ref. No.: RK 1295/18 RESOLUTION ON INADMISSIBILITY III Case No. Kl80j16 Applicant Shinto- Petar Shindov Company Constitutional review of Order SCA of the Special Chamber of the Supreme Court of Kosovo on Kosovo Trust Agency Related Matters of 15 September 2006 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KOSOVO composed of: Arta Rama- Hajrizi, President Bajram Ljatifi, Deputy President Bekim Sejdiu, Judge Selvete Gerxhaliu-Krasniqi, Judge Gresa Caka-Nimani, Judge Safet Hoxha, Judge Radomir Laban, Judge Remzije Istrefi-Peci, Judge, and Nexhmi Rexhepi, Judge Applicant 1. The Referral was submitted by the company "Shinto-Petar Shindov Company" from Plovdiv, Bulgaria (hereinafter: the Applicant), represented by the lawyers of the office "Interlex Associates LLC" from Prishtina.

2 Challenged decision 2. The Applicant challenges Order [SCA ] of the Special Chamber of the Supreme Court of Kosovo (hereinafter: the SCSC) on Kosovo Trust Agency Related Matters (hereinafter: the KTA) of 15 September The challenged decision was served on the Applicant in September Subject matter 4. The subject matter is the constitutional review of Order [SCA ] of 15 September 2006 of the SCSC, which allegedly violates the Applicant's rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution] in conjunction with Article 6 [Right to a fair trial] of the European Convention on Protection of Human Rights and Freedoms (hereinafter: the ECHR) as well as Article 46 [Protection of Property] of the Constitution. Legal basis 5. The Referral is based on paragraph 4 of Article 21 [General Principles] and paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Articles 22 [Processing Referrals] and Article 47 [Individual Requests] of the Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo (hereinafter: the Law) and Rule 32 [Filing of Referrals and Replies] of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo (hereinafter: the Rules of Procedure). 6. On 31 May 2018, the Constitutional Court of the Republic of Kosovo (hereinafter: the Court) adopted in the administrative session the amendments and supplementation to the Rules of Procedure, which was published in the Official Gazette of the Republic of Kosovo on 21 June 2018 and entered into force 15 days after its publication. Accordingly, in reviewing the Referral, the Court refers to the legal provisions of the new Rules of Procedure in force. Proceedings before the Court 7. On 24 May 2016, the Applicant submitted the Referral to the Court. 8. On 14 June 2016, the President of the Court appointed Judge Gresa Caka Nimani as Judge Rapporteur and the Review Panel composed of Judges: Robert Carolan (Presiding), Almiro Rodrigues and Ivan Cukalovic. 9. On 22 August 2016, the Court notified the Applicant about the registration of the Referral and sent a copy of the Referral to the SCSC. 10. On 30 September 2016, the President of the Court appointed Judge Altay Suroy as a member of the Review Panel replacing Judge Robert Carolan, who resigned from the position of the Judge of the Court on 9 September

3 11. On 04 October 2016, the Court sent a copy of the Referral to the Privatization Agency of Kosovo (hereinafter: PAK). On 10 October 2016, PAK submitted its comments to the Court. 12. On 28 April 2017, the Court requested the Applicant and the SCSC an explanation regarding Decision [C-V l] of 14 April 2016 of the SCSC. This Decision was not submitted to the Court by the Applicant, whereas from the case file it resulted that it is important decision in dealing with the case due to its connection with the challenged Order [SCA ] of the SCSC. 13. On 3 May 2017, the Applicant's representatives submitted their comments to the Court in relation to the abovementioned issue. On the same date, the SCSC also submitted its comments to the Court. 14. On 16 June 2018, the mandate of judges: Snezhana Botusharova and Almiro Rodripues ended. On 26 June 2018, the mandate of judges Altay Suroy and Ivan Cukalovic ended. 15. On 9 August 2018, the President of the Republic of Kosovo appointed new judges: Bajram Ljatifi, Safet Hoxha, Radomir Laban, Remzije Istrefi-Peci and Nexhmi Rexhepi. 16. On 18 August 2018, the President of the Court appointed new Review Panel composed of judges: Arta Rama-Hajrizi (Presiding), Bekim Sejdiu and Remzije Istrefi-Peci. 17. On 5 November 2018, the Review Panel considered the report of the Judge Rapporteur and unanimously recommended to the Court the inadmissibility of the Referral. Summary of facts Regarding the Decision of Arbitration 18. On 10 October 1994, the Applicant, in a capacity of the owner of the company "Shinto", Petar Shindov", signed a contract with Mineral-Metallurgical Chemical Lead and Zinc Combine "Trep~a" (hereinafter: Trep~a) based on which Trep~a delivered a certain amount of the raw material (110 tons PVC powder for 275, DM and 44 tons of polypropylene for 105, DM), while Trep~a was obliged to pay the contracted amount. 19 On an unspecified date, as the Applicant was not paid the debt for the delivered raw material, it filed a claim against Trep~a with the Foreign Trade Court of Arbitration at the Yugoslav Chamber of Commerce (hereinafter: the Arbitration Tribunal) as foreseen by the Agreement. 20. On 10 February 1998, the Arbitration Tribunal by Decision [T-28/97] approved in entirety the Applicant's claim and obliged Trep~a, which did not challenge the debt, to pay the remained debt to the Applicant in the amount of 380,600 DM under the terms defined by the Decision. 3

4 21. After the Decision of the Arbitration Tribunal was rendered, the Applicant failed to collect the debt due to the events in Kosovo in Regarding the procedure conducted during the KTA mandate 22. On 4 December 2003, the Applicant filed a claim with the SCSC against Trep~a, requesting the acknowledgment of the Decision [T-28/97] of the Arbitration Tribunal and its enforcement. The KTA, by the order of the Court, was involved in the process as a second respondent. 23. On 2 February 2005, the SCSC deciding on the Applicant's claim and after accepting the debt by the KTA, by Judgment [SCC ] acknowledged the Decision [T-28/97] of 10 February 1998 of the Arbitration Tribunal as an executive document and ordered the enforcement of this decision through the Municipal Court in Mitrovica. 24. By this Judgment, the SCSC had a) excluded the KTA from any liability in relation to this matter; b) accepted in entirety the decision of the Arbitral Tribunal; and c) referred the execution of the relevant decision to the Municipal Court in Mitrovica for further proceedings. 25. On 28 February 2005, following the Applicant's request, the Municipal Court in Mitrovica by Decision [E. No. 146/05] approved the proposal of the Applicant for the enforcement of Judgment [SCC ] of 2 February 2005 of the SCSC in conjunction with the Decision [T-28/97] of the Arbitration Tribunal and ordered the enforcement of these decisions in the amount of 354, euro. 26. From the case file it results that on 11April 2005, the KTA filed appeal against Judgment [SCC ] of 2 February 2005 of the SCSC, whereas on 18 May 2005, the KTA also filed appeal against Decision [E. No. 146/05] of 28 February 2005 of the Municipal Court in Mitrovica. 27 On 2 June 2005, the Special Representative of the Secretary-General (SRSG) adopted Administrative Direction No. 2005/7 Implementing UNMIK Regulation No. 2002/13 on the Establishment of a Special Chamber of the Supreme Court of Kosovo on Kosovo Trust Agency Related Matters (hereinafter: Administrative Direction 2005/7). This Administrative Direction sets forth a stay of all enforcement actions against all assets and Enterprises currently under the administrative authority and management of the Kosovo Trust Agency and designated to be part of "Trepqa under UNMIK Administration". 28. On 21 November 2005, the SRSG issued Regulation No. 2005/48 on the Reorganisation and Liquidation of Enterprises and their Assets under the Administrative Authority of the Kosovo Trust Agency (hereinafter: Regulation 2005/48). This Regulation resulted in one-year moratorium, staying any legal proceedings against Trep~a. According to the abovementioned Regulation, as of the date of the decision on moratorium "all actions, proceedings or acts of 4

5 any kind aimed at enforcing or satisfying any claim against the Enterprise concerned or its assets shall be suspended and shall only continue with the permission of the Court". 29. On 14 December 2005, the KTA based on Regulation 2005/48, filed the request before the SCSC, requesting the imposition of the moratorium on the company Trep<;a. On 9 March 2006, the SCSC by Decision [SCA ] imposed a moratorium on the company Trep<;a. 30. On 15 September 2006, the SCSC by Order [SCA-OS-002] suspended the enforcement of Judgment [SCC ] of 2 February 2005 of the SCSC in conjunction with Decision [T-28/97] of the Arbitration Tribunal and of the Decision [E. No. 146/05] of 28 February 2005 of the Municipal Court in Mitrovica to allow the enforcement for indefinite period until the issuance of new Order. This suspension, the SCSC reasoned pursuant to Regulation 2005/48 and the Decision [SCA-OS-002] of 9 March 2006 on the moratorium. The SCSC, among other things, reasoned: ''A.sof the date of this Moratorium Decision all actions, proceedings or acts of any kind aimed at enforcing or satisfying any claim against Trepc;a Under KTA Administration as defined above, or its assets shall be suspended and shall only continue with the permission of this Court in accordance with section 5.2 of UNMIK Regulation 2005/48. [...] Therefore this claim is suspended until further order of the court pursuant to the Moratorium Decision of 9 March, 2006 and its subsequent extensions. " Regarding the proceedings conducted during the mandate of the Privatization Agency ofkosovo (hereinafter: the PAK) 31. On 31 August 2011, the Assembly of the Republic of Kosovo adopted Law No. 04/L-034 on Privatization Agency of Kosovo (hereinafter: the Law on PAK), determining the latter as the successor of the KTA, and by replacing Regulation 2005/ On 22 September 2011, the Assembly of the Republic of Kosovo also adopted Law No. 04/L-003S on the Reorganization of Certain Enterprises and their Assets (hereinafter: Law on the Reorganization), through which, among other things, the PAK is determined as an Administrator of Trepc;a. 33. Based on this legal regulative, the PAK announced the public notice, according to which "all actions, proceedings or acts of any kind aimed at determining the validity of, enforcing or satisfying any claim interest with respect to the concerned Enterprise or its Assets shall be suspended and shall only continue with the permission of the Court". 34. A year later, on 1 November 2012, the PAK announced another public notice by which it announced the deadline for submitting creditor claims and other allegations against Trepc;a. 5

6 3S. On 04 January 2013, upon receipt of the notification sent by the PAK, the Applicant filed the claim [TC/ ] against Trepc;a. 36. In February 2013, following the request of the PAK, the SCSC by Decision [Ref. AC-I ], allowed the repetition of the deadline for submitting creditor claims against Trepc;a. 37. On 31 October 2013, the PAK announced a second public notice for the submission of creditor claims, determining that the deadline for submitting these claims is 30 December According to the Law on Reorganization, the PAK had from 30 to 90 days time to call the first creditors meeting to review their claims. 3S. According to the case file, it results that from the time of public announcement and further on, the PAK started the reorganization activities, while the Government of Kosovo proposed to the Assembly of Kosovo the initiative for the reorganization of Trepc;a. Consequently, and according to the case file, it results that the PAK had requested from the SCSC to extend the deadline for the first Creditors Meeting. The SCSC by the Decision [Ref. C-V ] approved this request and extended this deadline until April According to the case file, it also results that this meeting was never called as a result of the lack and changes in the management structure of the PAK. The PAK again addressed the SCSC with a request for postponement of the deadline for the first Creditors Meeting and submission of the reorganization plan. The SCSChad partially approved the PAK request. Regarding the request for annulment of challenged Order before the sese 40. On 12 February 2014, the Applicant alleges to have addressed the SCSC with the request to annul its Order [SCA-OS-002] of IS September 2006 and to proceed with the enforcement of the Judgment [SCC ] of 2 February 200S of the SCSC. 41. On 27 February 2014, the SCSC, according to the case file, forwarded the Applicant's request to PAKand obliged the latter to answer on this issue within 30 days. 42. On 3 April 2014, the PAK responded to the SCSC that this request was suspended until another court order pursuant to the Decision [SCA-OS-002] on the moratorium of 9 March 2006 and subsequent amendments. 43. On 19 January 201S, the Assembly of Kosovo adopted Law No. os/l-oos, amending and supplementing the Law on Reorganization of Certain Enterprises and their Assets. Through this law, to PAK is extended the deadline for submitting the reorganization plan. Based on this law, the PAK again addresses the SCSC to extend the deadline for submitting the reorganization 6

7 plan, a request that is approved by the Decision [Ref. C-V-1S-0002] of the SCSC until 1 November In February 2016, according to the case file, the PAK establishes the Commission for the preliminary examination of the alleged creditor claims against TrepGa. Among the reviewed claims was also the request [Ref. TC/13/0026] of the Applicant. PAK evaluation report, according to the case file, was submitted to the SCSC. 4S. On 16 February 2016, pursuant to Article S of the Law on Reorganization, the Applicant requested "the permission of the court", namely, of the SCSC, for the annulment of the Order [SCA-OS-002] of IS September 2006 on the suspension of enforcement of Judgment [SCC ] of 2 February 200S of the SCSC in conjunction with Decision [T-28/97] of the Arbitral Tribunal, requesting the continuation of the enforcement procedure according to the Decision [E. No. 146/oS] of 28 February 200S of the Municipal Court in Mitrovica. This request in the SCSC was registered with the new number C-V On 8 March 2016, the Applicant's representatives filed a submission with the SCSC to withdraw their proposal of 16 February 2016, challenging the fact that their request was registered as a new case. Through the submission, the Applicant's representatives stated as follows: "The abovementioned case has a long and complex history with the court [SCSC]. A final decision, SCC , was rendered. Subsequently, the KTA appealed through SCA This appeal is still pending in the court. We have been trying for years to convince the court to take action in this case. The current request was made incorrectly, in the continuation of efforts to persuade the court to act according to SCA The court gave to this request a new number, which will cause further confusion with the case. Therefore, we want to withdraw this request". 47. On 14 April 2016, the SCSC by Decision [C-V ] approved the Applicant's request for the withdrawal of its proposal of 19 February The SCSC reasoned it decision by Article 26 paragraph 1 of the Annex to the Law No. 04/L-033 on the sesc. The Decision in question clarified that the appeal against it could be addressed to the Appellate Panel of the SCSC within 21 days. 48. On 8 October 2016, the Assembly of Kosovo approved Law No. OS/L-120 on TrepGa (hereinafter: Law on TrePGa). Comments presented by PAK 49. In its comments of 10 October 2016, the PAK inter alia, clarifies a) the background of the assignment and continuation of the moratoriums that resulted in the suspension of claims against TrepGa; b) ongoing changes in the legal regulation in this regard; c) the ongoing challenges of PAK that have prevented the meeting of creditors, and d) the creditor status, namely of the Applicant of "Shinto". Regarding the latter, the KPA, among others, states: 7

8 "The preliminary assessments of the PAK Commission regarding this creditor claim were based on the supporting evidence of the applicant of the "Shinto" creditor claim and that the decision of the Special Chamber of the Supreme Court of Kosovo SCC , of which has now become final, is the legal basis for the merits of the claim, however, the preliminary assessment does not constitute a merit assessment of the case, because according to the applicable law, the recommendations of the PAK Administrator fo the creditor claims will be approved by the Special Chamber of the Supreme Court of Kosovo" Comments submitted by the SCSC 50. On 3 May 2017, in its response submitted to the Court, the SCSC clarifies that the case under No. C-V registered with the SCSC on 19 February 2016, has been completed by Decision [C-V ] of 14 April The SCSC also stated that no appeal was filed against this Decision. Comments submitted by the Applicant 51. On 3 May 2017, responding to the Court as to the connection of the Order [SCA ] of the SCSC challenged in the Court by Decision [CV ] of 14 April 2016 of the SCSC, the Applicant states that the submission of 8 March 2016 for withdrawal of the request, "does not mean that the creditor has renounced the procedure for the execution of thefinal decision". 52. The Applicant states that, despite the withdrawal of his request, "the procedure initiated by the appeal-objection of the KTA, which in the court [SCSC] was registered with number SCA court [SCSC] has never been completed, making that the execution of the request is stayedfor years". Applicant's allegations 53. The Applicant alleges a violation of the right to fair and impartial trial guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR and Article 46 [Protection of Property] of the Constitution. 54. As to the allegations of a violation of the right to fair and impartial trial, the Applicant alleges that it was denied the right to a decision within a reasonable time. The Applicant alleges that despite the continuing requests, the SCSC did not decide on the KTA appeal of 18 May 2005 against the Decision [E. No. 146/05] of 28 February 2005 of the Municipal Court in Mitrovica, denying him the rights guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR. In support of its allegations in this regard, the Applicant refers to the ECtHR case X v. France (ECtHR Judgment of 23 March 1991, paragraphs 47-49) and A and Others v. Denmark (ECtHR Judgment of 8 February 1996, paragraph 78). 8

9 55. The Applicant also states that he has a final Judgment and final Decision, the Judgment [SCSC ] of 2 February 2005 of the SCSC and the Decision [E. No. 146/05] of the Municipal Court in Mitrovica of 28 February 2005, namely, the3 reinforcement of which has remained suspended as a result of the Order [SCA ] of 15 September 2006 and was prevented as a result of continued moratoriums. The non-execution of a final decision, according to the Applicant, resulted in a violation of its rights to a fair and impartial trial. In building its arguments in this regard, the Applicant refers to the cases of ECtHR Lyubov Sestsenko v. Russia (ECtHR Judgment of 17 April 2014) and Kopnin and Others v. Russia (ECtHR Judgment of 28 May 2014). 56. The Applicant requests the Court to annul Order [SCA ] of the Special Chamber of 15 September 2006 of the SCSC, in order to proceed with the enforcement procedure of the Judgment [SCC ] of 2 February 2005 of the SCSC. Admissibility of the Referral 57. The Court first assesses whether the Applicant has met the admissibility requirements established by the Constitution and as further provided by the Law and foreseen by the Rules of Procedure. 58. In this respect, the Court refers to paragraph 4 of Article 21 [General Principles] and paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, which provide: Article 21 [General Principles],,4 Fundamental rights andfreedoms setforth in the Constitution are also validfor legal persons to the extent applicable". Article 113 [Jurisdiction and Authorized Parties] "1. The Constitutional Court decides only on matters referred to the court in a legal manner by authorized parties. (...J 7 Individuals are authorized to refer violations by public authorities of their individual rights and freedoms guaranteed by the Constitution, but only after exhaustion of all legal remedies provided by law". 59. Regarding the fulfillment of these constitutional requirements, the Court first notes that in accordance with Article 21.4 of the Constitution, the Applicant has the right to submit a constitutional complaint, referring to the constitutional rights applicable to individuals and which are also applicable for legal entities such as the Applicant. (see, inter alia: Resolution on Inadmissibility, AAB- RIINVEST University, L.L.C. Prishtina v. the Government of the Republic of Kosovo, Case KI41/09 of 21 January 2010). 9

10 60. The Court also notes that the Applicant is an authorized party which challenges an act of a public authority, namely the Order [SCA ] of 15 September 2006 of the SCSC, as foreseen in Article 113,paragraph 7 of the Constitution. 61. However, the Court notes that paragraph 7 of Article 113 of the Constitution also provides for the exhaustion of "all legal remedies provided by law". This constitutional obligation is also determined by Article 47 of the Law and item b of paragraph 1 of Rule 39 of the Rules of Procedure. The latter define: (...) Article 47 [Individual Requests] "2. The individual may submit the referral in question only after he/she has exhausted all the legal remedies provided by the law". Rule 39 [Admissibility Criteria] (1) The Court may consider a referral as admissible if: (...) (b) all effective remedies that are available under the law against the judgment or decision challenged have been exhausted". 62. In this regard, the Court reiterates that paragraph 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, among other things clearly emphasize the obligation of "exhaustion of legal remedies provided by law", provided that a Referral is declared admissible and its merits are reviewed. 63. The criteria for assessing whether this obligation is fulfilled are also well defined in the case law of the Court and that of the European Court of Human Rights (hereinafter: the ECtHR), in harmony with which, based on Article 53 [Interpretation of Human Rights Provisions] of the Constitution, the Court is obliged to interpret the human rights and fundamental freedoms guaranteed by the Constitution. 64. In this respect and with regard to the circumstances of the present case, the Court recalls that the Applicant challenges the constitutionality of the Order [SCA ] of 15 September 2006 of the SCSC, which suspended the enforcement of the Decision [E. No. 146/05] of 28 February 2005 of the Municipal Court in Mitrovica in conjunction with Judgment [SCC ] of 2 February 2005 of the SCSC, which recognizes the Decision [T-28/97] of the Arbitration against Trep<;a. 65. The Court also recalls that the enforcement procedure in the circumstances of the present case was formally suspended on 15 September 2006 by Order 10

11 [SCA ] of the SCSC, based on Regulation 2005/48 and Decision [SCA ] 9 March 2006 of the SCSC on the moratorium. This moratorium, through various mechanisms, was extended several times since that time. 66. The Applicant addressed the SCSC with a request for the annulment of the challenged Order and for allowing the enforcement of Judgment [SCC ] of 2 February 2005 of the SCSC. However, he withdrew this request, challenging the fact that their claim was registered as a new case. This request was approved by the SCSC by Decision [C-V ] of 14 April This Decision was not appealed to the Appellate Panel of the SCSC. Accordingly, the Decision [C-V l] is the final decision regarding the issue raised in this case. 67. Upon withdrawing the claim from the SCSC, the Applicant addressed the Court requesting the annulment of the challenged Order and alleging that the latter resulted in a violation of his rights to fair and impartial trial guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR and his right to property guaranteed by Article 46 of the Constitution. As the Applicant does not justify his allegations of a violation of the right to property, he builds his allegations of violation of the right to fair and impartial trial by referring: a) lack of a decision within a reasonable time and b) failure to execute a final judgment. 68. The Court specifically recalls that the Applicant alleges that his right to a trial within a reasonable time has been violated, because the SCSC still keeps the challenged Order in force by suspending the enforcement of a final Judgment. It justifies the withdrawal of its claim of 16 February 2016, by challenging the issuance of a new number of the enforcement matter, but reasons that its withdrawal does not change the fact that its rights to a decision within a reasonable time are violated, because according to the Applicant, the SCSC has not yet decided on the PAKappeal of In this regard, the Court notes that from the case file, it results that the KTA filed appeal against the Judgment [SCC ] of 2 February 2005 of the SCSC and the Decision [E. No. 146/05] of 28 February 2005 of the Municipal Court in Mitrovica, in April and May 2005, respectively. As a result of these complaints, the issuance of the Administrative Order 2005/7, the Regulation 2005/48 and the Decision on Moratorium of 9 March 2006, the SCSC rendered the challenged Order for suspension of enforcement. 70. However, and despite the KTA's appeal against the Decision [E. No. 146/05] of 28 February 2005 of the Municipal Court in Mitrovica, all the applicable legal provisions during this time allowed the Applicant to request a "permission of the court" for the annulment of the challenged Order, and consequently allowing the enforcement of the Decision [E. No. 146/05] of 28 February 2005 of the Municipal Court in Mitrovica. 71. In this regard, the Court specifically notes that, based on all relevant applicable laws throughout this period, including Regulation 2005/48, the Law on Reorganization and its amendments, and the Law on Trep<;a, the fulfillment of 11

12 suspended claims, and in the circumstances of the case, against TrePGa, may have proceeded only with the "permission of the court". In this regard, the Court refers to: a) Article 5 of Regulation 2005/48; and later on b) Article 5 of the Law on Reorganization, which was not affected by Law No. os/l-008 on amending and supplementing it. This was the law in force at the time of submitting/withdrawing the claim from the SCSC by the Applicant and the basis on which the Applicant submitted, and then withdrew his requert for the "permission of the court". 72. The Court reiterates that the request for the "permission of the court", namely the annulment of this Order, was submitted and subsequently withdrawn by the Applicant. As noted above, this request for withdrawal was approved by the SCSC by Decision [CV l] of 14 April 2016, and accordingly, the SCSC based on this Decision and the comments it has submitted to the Court on 3 May 2017, still keeps in force the challenged Order, considering that there is no active request to review its annulment. 73. Accordingly, the Court notes that the Applicant addressed the Court before requesting the "permission of the court", namely the SCSC, to decide on the annulment of the challenged Order, namely Order [SCA-OS-002] of 15 September 2006, and consequently, allowing the execution of the Decision [E. No. 146/05] of 28 February 2005 of the Municipal Court in Mitrovica in conjunction with the Judgment [SCC ] of 2 February 2005 of the SCSC. 74. The Court further notes that even after the new law on Trep<;awas adopted, the "permission of the court" continues to be the mechanism through which the creditor claims can be satisfied. In this regard, the Court recalls Article 15 (Creditor Claims) of the Law on Trep<;a. This Article defines the manner of realization of creditor claims and respective applicable laws, including the Law on Publicly-Owned Enterprises (Law No. 04/L-ll1 on Amending and Supplementing Law No. 03/L-087 on Publicly-Owned Enterprises) and the Law on Reorganization. 75. Taking into account that such a possibility provided by law has not been exhausted, the Court must find that the Applicant has not met the admissibility requirements established in the Constitution, the Law and the Rules of Procedure. 76. The Court reiterates that the rationale of the obligation to exhaust legal remedies or the exhaustion rule is to afford the authorities concerned, first and foremost the regular courts, the opportunity to prevent or put right the alleged violation of the Constitution. The rule is based on the assumption reflected in Article 32 of the Constitution and in Article 13 of the ECHR that the legal order of Kosovo shall provide an effective remedy for the violation of constitutional rights. This is an important aspect of the subsidiary character of the constitutional justice machinery. (See: ECHR case Selmouni v. France, Application No /94, Judgment of 28 July 1999, paragraph 74 and, inter alia, cases of the Court, No. KI07/1S, Applicant She.fki Zogiani, Resolution on Inadmissibility of 8 December 2016, paragraph 61; No. KI30/17, Applicant 12

13 Muharrem Nuredini, Resolution on Inadmissibility, of 7 August 2017, paragraph 35; case No. KI41/o9, Applicant University AAB-RIINVEST LLC, Resolution on Inadmissibility of 3 February 2010, paragraph 16; and Case No. KI94/14, Applicant Sadat Ademi, Resolution on Inadmissibility of 17 December 2014, paragraph 24). 77. The Court has consistently respected the principle of subsidiarity, considering that all the Applicants should exhaust all procedural possibilities in the regular proceedings, in order to prevent the violation of the Constitution or, if any, to remedy such violation of a fundamental right. The Court further stated that the Applicants are liable to have their case declared inadmissible by the Court, when failing to avail itself of the regular proceedings or failing to report a violation of the Constitution in the regular proceedings. (See, inter alia, Case No. KII39/12, Applicant Besnik Asllani, Decision on the request for Interim Measure and Resolution on Inadmissibility of 25 February 2013, paragraph 45, case KI07/09, Applicants Deme Kurbogaj and Besnik Kurbogaj, Resolution on Inadmissibility of 19 May 2010, paragraphs 18-19, case KI89/15, Applicant Fatmir Ko~i, Resolution on Inadmissibility, of 22 March 2016, paragraph 35; case KI24/16, Applicant Avdi Haziri, Resolution on Inadmissibility of 16 November 2016, paragraph 39, and case No. KI30/17, Applicant Muharrem Nuredini, Resolution on Inadmissibility, of 7 August 2017, paragraphs 35-37). 78. The Court reiterates that this approach requires that before addressing the Court, the Applicants must exhaust all procedural possibilities in the regular, administrative or court proceedings, in order to prevent any violation of human rights and freedoms guaranteed by the Constitution or, if any, to remedy such a violation of rights guaranteed by the Constitution. (See, case of the Court No. KI62/16, Applicant Beke Laj~i, Resolution on Inadmissibility, of 10 February 2017, paras 59-60, Case No. KI07/09, Applicant: Deme Kurbogaj and Besnik Kurbogaj, Resolution on Inadmissibility of 19 May 2010, paragraphs. 18/19, Case No. KI109/15, Applicant: Milazim Nrecaj, Resolution on Inadmissibility, of 17 March 2016, paras , Case KI148/15, Applicant: Xhafer Selmani, Resolution on Inadmissibility, of 15 April 2016, paragraphs 27-28). 79 However, notwithstanding the abovementioned principles, the exhaustion rule, based on the ECtHR case law, is to be applied with some "degree of flexibility and without excessive formalism", given the context of protecting human rights. In principle, the obligation to exhaust legal remedies is limited to making use of those remedies the existence of which is sufficiently certain, not only in theory, but also in practice; which are available, accessible and effective; and which are capable of redressing directly the alleged violation of the ECHR. (See, Selmouni v. France, paragraphs 71 to 81, Akdivar and Others v. Turkey, Section B. Exhaustion of domestic legal remedies, paragraphs 55-77, Demopolous and Others v. Turkey, Sections: A. Submissions before the Court for exhaustion of domestic legal remedies and B. Exhaustion of domestic legal remedies, paragraphs ; Ocalan v. Turkey, 63-72; and Kleyn and others v. the Netherland, paragraphs ). In addition, an Applicant cannot be considered to have exhausted legal remedies if he can demonstrate, by providing relevant case law or other appropriate evidence that a legal 13

14 remedy available to him which he has not used would fail. (Case Kleyn and Others v. The Netherlands, paragraph 156 and references cited therein, and Selmouni v. France, paragraphs 74 to 77) 80. The determination on whether each specific case meets the criteria, based on which the exhaustion of legal remedies requirement would be considered fulfilled and waived, must be made based on the distribution of "burden of proof', a process clearly established in the ECHtR case law. (Selmouni v. France, paragraph 76 and the references therein; and Akdivar and Others v. Turkey, paragraph 68 and the references therein.) 81. In all cases however, and based on the ECtHR case law, an applicant must show that "he/she did everything that could reasonably be expected of her/him to exhaust legal remedies". (See D.H. and Others v. the Czech Republic, paragraph 116 and the references therein). In fact, even further, the ECtHR case law refers to "mere doubts" as not a sufficient reason to absolve an applicant from the exhaustion of legal remedies requirement. (See among others, Epozdemir v. Turkey, first paragraph of pg. 6 and the references therein; Milosevic v. the Netherlands, last paragraphs of pg.6; and MPP Golub v. Ukraine, last paragraph of Section C on Court's Assessment). On the contrary, it is in the Applicant's interests to apply to the appropriate court to give it the opportunity to develop existing rights through its power of interpretation. (See among others, Ciupercescu v. Romania, paragraph 169). 82. In the light of the practice referred above and in the circumstances of the case, the Court notes that, despite the fact that the enforcement of a final Judgment has been suspended since 2006 as a result of the moratoriums established under the legislation in force, the Applicant does not substantiate why the legal mechanism for reviewing the permission of this enforcement, namely the competence of the SCSC,does not constitute a legal remedy a) quite certain not only in theory but also in practice; b) available, accessible and effective; c) able to rectify directly the alleged violations of the Constitution and the ECHR; or d) that the relevant legal remedy would fail. Furthermore, the Court reiterates that the Applicant has filed and withdrawn the request for enforcement with the SCSC and consequently, based on the case file, there was no argument to have an active claim in the SCSCfor the annulment of the Order [SCA ] of 15 September 2006, namely to allow the enforcement of Judgment [SCC ] of 2 February Therefore, for the reasons mentioned above, the Court finds that the Referral does not meet the admissibility requirements as the Applicant has not exhausted legal remedies established in Article of the Constitution, Article 47 of the Law and Rule 39 (1) (b) of the Rules of Procedure, therefore, as such the Referral is to be declared inadmissible, and consequently, the Court may review the Applicant's allegations of violation of its rights guaranteed by the Constitution. (See, inter alia, case of the Court No. KI07/15, Applicant She.fki Zogiani, Resolution on Inadmissibility, of 8 December 2016, paragraph 62, and case No. KI30/17, Applicant Muharrem Nuredini, Resolution on Inadmissibility, of 7 August 2017, paragraph 38). 14

15 FOR THESE REASONS The Constitutional Court of Kosovo, pursuant to paragraphs 1 and 7 of Article 113 of the Constitution, Article 47 of the Law, and Rule 39 (1) (b) of the Rules of Procedure, in the session held on 5 November 2008, unanimously DECIDES 1. TO DECLARE the Referral inadmissible; II. TO NOTIFY this Decision to the Parties; III. TO PUBLISH this Decision in the Official Gazette, in accordance with Article 20.4 of the Law; and XI. This Decision is effective immediately Judge Rapporteur President of the Constitutional Court Gresa Caka-Nimani Arta Rama-Hajrizi l ". II - _---,...: This translation is unofficial and serves for informational purposes only. 15