RESOLUTION ON INADMISSIBILIlY

Transcription

1 Rt:PI III I h. \ I' "O!-,()\ P!-' - "hin h.1i1 K\ "O( ORO R I!,, nth OJ "O:-'O"U GJYI \ TA KU IITETUE E YCfABHHCY.l1: CONSTITUTIONAL COURT Pristina, 17 May 2013 Ref. No.:RI408jI3 RESOLUTION ON INADMISSIBILIlY in Case no. KI18/13 Applicant Blerim Uka Constitutional Review of the Judgment Ac.no. 1314/2012, of the District Court in Prishtina, dated of THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KOSOVO composed of Enver Hasani, President Ivan Cukalovic, Deputy-President Robert Carolan, Judge Altay Suroy, Judge Almiro Rodrigues, Judge Snezhana Botusharova, Judge Kadri Kryeziu, Judge and Acta Rama-Hajrizi, Judgeo The Applicant 1. The applicant is Blerim Uka, born in Mitrovica, currently residing in Prishtina, represented by the practising lawyer Gani Asllani from Prishtina.

2 Challenged decision 2. The Applicant challenges the Judgment Ac. no. 1314/2012, of the District Court in Prishtina, dated of 07 December 2012 and served on him on 16 January Subject matter 3. The Applicant claims that the court have not rendered fair and impartial judgment, thereby violating provisions of the Constitution of the Republic of Kosovo and of the European Convention for Protection of Human Rights and Fundamental Freedoms. 4. The Applicant also requests the Court to impose an interim measure, suspending the execution ofthe order [E.no.915/12], of 05 Marcha 2013, ofthe Court in Prishtina. Legal basis 5. The referral is based on Articles and 21.4 of the Constitution, Articles 20, 22.7 and 22.8 of the Law no. 03/L-121 on the Constitutional Court ofthe Republic of Kosovo, of 15 January 2009 (hereinafter, the Law), and Rule 56, paragraph 2, of the Rules of Procedure. Proceedings before the Court 6. On 15 February 2013, the Applicant filed the referral with the Constitutional Court of the Republic of Kosovo (hereinafter, the Court). 7. On 26 February 2013, the President appointed Judge Almiro Rodrigues as Judge Rapporteur and the Review Panel composed of judges Altay Suroy (Presiding), Kadri Kryeziu and Arta Rama Hajrizi. 8. On 16 April 2013, the Review Panel considered the Report of the Judge Rapporteur and made a recommendation to the Court on the inadmissibility of the Referral and rejection on the requested interim measure. Summary offacts 9. On 31 March 2000, the Applicant entered working relationship as an executive director with the Private Company "P.P. DAK INGENIERING", owned by H.S. 10. On the month of November 2001, the owner of the Company H.S., due to financial problems, decided to terminate the activities of the company and ordered the Applicant, exercising his functions as executive director, to inform in written all staff of the company that the working relationships had been terminated. 11. On 27 November 2002, the Applicant served in written the employee I.H., with the decision on termination of his contract of 15 August I. H., refused to accept. 12. On an unknown date in 2006, I. H., filed with the Municipal Court in Prishtina a claim against the Applicant, for compensation of damages and payment of monthly salaries as per working contract. The Applicant claims that he never received the claim from the Court. 13. The Applicant states that I.H., "was very conscious that he did not establish employment relationship with Blerim Uka [the Applicant], but with the company "N.P.DAK ENGINEERING" owner of which was H.S.". 2

3 14. On 15 December 2008, the Municipal Court in Prishtina approved the claim suit, and rendered a judgment [C1.no.139/2006], by which the Court ordered "P.P.DAK INGENIERlNG", to pay LH., for his working contract signed on 15 August However, the Applicant states that the Judgment of the Municipal Court ordered "P.P.DAK INGENIERlNG" to pay I.H.,"by obliging me, in the capacity of owner sometimes (and in fact I was employed same as claimant by employment contract) and sometimes in the capacity of legal representative" and, apparently, not knowing "the distinction between owner and executive director of a company" as, in fact, H.S., was the owner of P.P.DAK INGENIERlNG "who had established the employment relationship" with LH. 16. On 16 April 2009, the Applicant filed with the District Court in Prishtina an appeal against Judgment [C1.no.139/2006] of 15 December On 27 April 2012, the District Court in Prishtina rendered a Judgment [Ac.no. 540/2009]' thereby rejecting the appeal of the Applicant, and upholding in its entirety the judgment ofthe Municipal Court [C1.no.139/2006] of 15 December On 17 May 2012, LH., filed a request for execution ofjudgment of the Municipal Court in Prishtina [C1.br.139/2006] against "DAK-ADK INGENIERlNG" owned by Blerim Uka. 19. On 10 October 2012, the Municipal Court rendered a Judgment [Ekz.no. 915/2012], thereby approving the request for execution. 20. On 16 October 2012, the Applicant filed an appeal with the District Court against the decision ofthe Municipal Court in Prishtina, [Ekz.no. 915/2012]. 21. On 7 December 2012, the District Court in Prishtina rejected the appeal of the Applicant as ungrounded, while the decision of the Municipal Court in Prishtina [Ekz.no. 915/2012], of 10 October 2012, was upheld. Applicant's allegations 22. The Applicant claims that he was not the owner of the company "P.P. DAK INGENIERlNG"and he only had a working relationship as executive director. 23. The Applicant claims that, on 24 November 2004, he established a new company called "ADK" which, as a different legal entity, has nothing to do with "P.P. DAK INGRNIERlN", then owned by H.S. 24. The Applicant argues that, on 17 May 2012, there was an error in filing the request for execution, by which it was requested the execution on the company "DAK-ADK", which is not mentioned in the enacting clause of the final judgment [Cl.no. 139/2006] of 15 December The Applicant concludes that the regular courts rendered their decisions without ascertaining the full factual situation, in violation of provisions of the Constitution and the European Convention on Human Rights. 26. The Applicant alleges that his rights and freedoms as per Article 21 (General Principles of the Constitution), Article 22 (Direct Application of International Treaties and 3

4 Instruments), Article 31 (Right to Fair and Impartial Tria)), including the Article 6 of the European Convention on Protection of Human Rights, have been violated. 27. The Applicant, in sum, requested the Constitutional Court : "to review the legality ofdedsions ofregular courts, compliance ofthese decisions with applicable laws in the Republic ofkosovo, the Constitution ofthe Republic of Kosovo, and the European Convention on Protection of Human Rights and Fundamental Freedoms, and Protocols to it". 28. The Applicant further expects "the ConstJ."tutional Court to give the evaluatj on for this civil legal matter". Admissibility ofthe Referral 29. The Applicant claims that he has never received the claim filed against him by 1. H., with the Municipal Court. The Applicant further alleges that in all instances "the Courts have not determined at all the factual situation on who the respondent is and who in fact was supposed to be the respondent". 30. The Court needs first to examine whether the Applicant has fulfilled all the admissibility requirements laid down in the Constitution and as further specified in the Law and the Rules of Procedure. 31. The Court refers to paragraph 1 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution that establishes: "The Constitutional Court decides only on matters referred to the court in a legal manner by authorized parties". 32. The Court notes that Rule 36 (1).C) ofthe Rules of Procedure provides: "The Court may only deal with Referrals if: c) the Referral is not manifestly illfounded." 33. The Court also refers to Rule 36 (2) d) of the Rules of Procedure, which provides: "The Court shall reject a Referral as being manifestly ill-founded when it is satisfied that: (d) the Applicant does not sufficiently substantiate his claim". 34. The Constitutional Court notes that the Municipal Court in Prishtina, in its judgment [C1.no.139/2006] of 15 December 2008, observed that "the respondent even though was invited regularly about holding the main review what he certified by the acknowledgment on admission of the date 04 December2008, to the invitation of the Court was not responded and he did not justify his absence, thus the Court in compliance with Article 295 of LCP and according to the proposal of the authorized of claimant, the main public session was held in his absence". 35. The Applicant has never complained, during the regular proceedings, about not having received the claim filed with the Municipal Court against him by 1.H.; neither he has built and proved a case before the Court on that alleged violation. 36. On the other side, the District Court, in its judgment of 7 December 2012, reasoned that: 4

5 in the circumstances above that the any towards the creditor damage, since judgment was obliged company " this court did not as grounded. This is so about same respondent, now the The mentioned confirmed by the evidence in the In words, the debtor stated that "DAK-Engineering," the owner' ofwhich was H.S., and Uka, now is run with the name the, which owner is while the is H.S. All this that it is company, which changed its name. company name rotation of owner and director do not the obligations the debtor which was upheld 37. The Constitutional Court reminds that it is not a fourth-instance Court, reviewing rendered by regular courts on establishing the applying the law. It is the role of regular courts to interpret and apply procedural and substantive (see mutatis mutandis, Garcia Ruiz v. Spain [GC], no /96, paragraph European Court for Human Rights [ECHR] 1999-I). 39. The Constitutional Court notes that the numerous possibilities arguing his case and evidence for his case regular courts. courts are all judgments and Municipal and Courts. The District Court rendered a judgment, answering the arguments Applicant, upholding and legal the Judgment ofthe Municipal Court. 40. Therefore, both the Municipal and District Courts considered and in fact responded to the complaints of the Applicant. 41. The Constitutional Court only limited authority in u""",,,,,,u u,-":;.t;,,,u errors in or in law, as taken courts, and cannot a of the regular courts with its own Jantner v. Slovak no /97, paragraph 32, judgment of 4 March 42. the Applicant not sufficiently substantiated and proved his allegations terms of a constitutional violation of his rights by the Municipal and District Courts. In addition, the Court notes that the judgments and Municipal and District Court are rather reasoned and do not show any arbitrariness. 43. Therefore, it follows that the is inadmissible, I-/"'<':>"':;U«to Rule (2).b) of the Rules of Procedure, it is manifestly ill-founded.... ""...<"".,.. for interim measure 44 of the Law, and "1J'C~lJ<,,-a the Rule 54 of Procedure, "At any time is pending Court and the merits rpt,prr.n/ have not by the Court, a may interim measures. " 45 since the Referral is the request on interim measures does not requirements 1"n,"p,,,',::.n Rule 54 (1) of the nejre!()re the request on interim measure is rejected as 5

6 FOR THESE REASONS The Constitutional Court, pursuant to Article of the Constitution, Article 20 and 27 of the Law, and Rules 36.2, 54, 55 and 56 of the Rules of Procedure, on 17 May 2013, unanimously, DECIDES I. TO REJECT the Referral as Inadmissible; II. III. TO REJECT the Request for interim measures; TO NOTIFY this Decision to the Parties; IV. TO PUBLISH this Decision in the Official Gazette, in accordance with Article 20-4 of the Law; and IV. This Decision is effective immediately. Judge Rapporteur President ofthe Constitutional Court Almiro Rodrigues ~-----~----~ ~ Prof. Dr. Enver Hasani \. / 6