REPUHLlKA E KOSOVrs - IEnYIiJI11KA KOCOHO -IUWUULlC OF KOSOVQ

GJYKATA KUSHTETUESE YCfABHM CYJI

CONSTITUTIONAL COURT

Pristina 14 October 2013 RcfnoRK479 13

RESOLUTION ON INADMISSIBILITY

In

Case No KI 2513

Applicant

Qazim Dragusha

Request for review of the civil proceedings pending before the Municipal Court in Pristina Cno 35808 (delay ofproceedings)

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 Arta Rama-Hajrizi Judge

The Applicant

1 The Applicant is Qazim Dragusha from Pristina represented by Bejtush Isufi a lawyer practising in Pristina The Applicant is the sole owner of NTPN Extradragusha a private enterprise

Subject matter

2 The subject matter of the Referral submitted to the Constitutional Court (Court) is the alleged unreasonable length of the civil proceedings instituted by NTPN Extradragusha in 2001 before the Municipal Court in Pristina

Legal basis

3middot The Referral is based on Art 1137 of the Constitution Articles 46 47 48 and 49 of the Law and Rule 56 (2) of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo (hereinafter referred to as the Rules of Procedure)

Proceedings before the Constitutional Court

4 On 1 March 2013 the Applicants representative Bejtush Isufi a lawyer practicing in Pristina submitted the Referral to the Court

5 On 22 March 2013 the President appointed Judge Snezhana Botusharova as Judge Rapporteur and the Review Panel composed of Judges Robert Carolan (Presiding) Almiro Rodrigues and Enver Hasani

6 On 3 April 2013 the Court notified the Applicant personally that the referral had been registered with the Court With the same letter the Applicant was requested to submit to the Court the additional documents in support of the referral including all decisions of the courts The Court also asked to be provided with the written Power of Attorney that Mr Bejtush Isufi is the Applicants authorized representative before the Constitutional Court

7 Also on 3 April 2013 the Court notified the Basic Court in Pristina of the referral and requested it to provide a copy of the certificate of service showing the date when the Decision of the Municipal Court in Pristina Cno 35808 dated 6 April 2012 was served to the Applicant

8 On 17 April 2013 Mr Bejtush Isufi submitted to the Court a copy of the Power of Attorney given to him by the Applicant

9 In addition to the Power of Attorney only two documents ie the decision of the District Court in Pristina Acno6992005 dated 26 February 2008 and the Decision of the Municipal Court in Pristina Cno35809 dated 6 April 2012 were attached to the written submission

10 On 30 April 2013 the Basic Court in Pristina informed the Court that the civil case Cno 35808 was sent to the Basic Court in Pristina Department in Podujevo on 1 March 2013

11 Furthermore on 8 May 2013 the Court received a letter from the Basic Court in the Pristina Department in Podujevo With that letter the Court was informed that the Podujevo Department received the civil case C no 35808 from the

2

Basic Court in Pristina on 6 March 2013 and that the case was registered under new number C 9813

12 Also the Podujevo Department of the Basic Court in Pristina provided the Court with a copy of the certificate of service indicating that the Decision of the Municipal Court in Pristina Cno 35808 dated 6 April 2012 was served on the Applicant on 10 May 2012

13 On 9 September 2013 after having considered the Report of the Judge Rapporteur the Review Panel made a recommendation to the Court on the inadmissibility of the Referral

The facts of the case

14 According to the Applicants allegations on 11 January 2001 the company NTPN Extradragusha submitted a petition to the Municipal Court in Pristina requesting inter alia recognition of its co-ownership rights in the amount of 55 on the real estate (that is comprised of 72 commercial premises) of the shopping centre Urimi located in Podujevo

15 While the Applicant did not provide the Court with a copy it seems that on 19 October 2004 the Municipal Court in Pristina issued Decision C no182001 and declared itself territorially incompetent to consider the petition of Extradragusha of 2001

16 On an unspecified date Extradragusha submitted an appeal against the decision on territorial incompetence of the Municipal Court in Pristina to the District Court in Pristina The Court has not received a copy of that appeal

17 On 26 February 2008 the District Court in Pristina issued Decision Ac No 6992005 and quashed the Decision C no 182001 dated 19 October 2004 returning the case to the first instance Court In the reasoning of the District Court Judgement it was stated that that the Municipal Court based its decision on territorial incompetence on the fact that the respondent party is a resident of Podujevo However the District Court in Pristina found that the appealed ruling is notjust and lawjulfor the reason that in Article 9 of the Contract for the conducting the works in premises it was agreed that in case of court dispute the territorial competent court would be the Municipal Court in Pristina Consequently the District Court asserted the Court of the first instance shall consider the above-mentioned objections during the retrial

18 On 6 April 2012 the Municipal Court in Pristina issued Decision C NO35808 and declared itself again territorially incompetent to decide the case of Extradragusha It stated that after the Decision became final this matter with all the case-file documents would be submitted to the Municipal Court in Podujevo the court with the territorial jurisdiction for the case at hand

19 In the reasoning the Municipal Court referred to the reasoning of the District Court in Pristina in particular to Article 9 of the Contract on performance of work but added that in the Extradragushas civil case the relevant provisions of the Law on Contentious Procedure (LCP) should be applied Namely the

3

Municipal Court referred to Article 411 of the LCP according to which The court within whose territory is located the immovable property is exclusively competent to adjudicate the disputes that are related to the property and other property rights disputes over obstruction to possession of immovable item disputes over the lease of the immovable property or contracts for use of residence and working premises

20 The Municipal Court in Pristina elaborated further that pursuant to Article 661

of the LCP If the law does not determine the exclusive territorialjurisdiction of the court on the subject matter parties may agree for the court with lack of territorial jurisdiction to proceed with first instance adjudication subject to courts jurisdiction on the subject matter Finally the Municipal Court concluded that pursuant to Article 33 of the LCP The court may not approve the agreement of contesting parties that are in contradiction with the b) legal provisions

Applicants Allegation

21 The Applicant alleges in the referral and in particular in the written submission of 17 April 2013 the following Its been more than 12 years and the court has still not solved out the issue of who is competent to review and decide on this case Its been almost a year and the case has not arrived yet in the Basic court in Pristine-the branch in Podujevo Its been more than 12 years and the review of the case on merits has not yet begun and even single session has been scheduled Even Qazim Dragusha has the ight to afair trial regarding the case with number C No 3582008

22 The Applicant claims both in the referral and the written submission of 17 April 2013 that in the period from 2008 to 2012 he sent many letters to the Municipal Court in Pristina urging the review of the case However the Court did not receive any letters

23 Consequently the Applicant alleges that there has been a violation of Articles 22

and 31 of the Constitution as well as Article 6 of the European Convention on Human Rights

24 The Applicant proposes to the Court to declare the Referral admissible and to confirm that there has been violation of Article 12 of the Constitution of the Republic of Kosovo and Article 6 of the European Convention on Human Rights and to allocate a certain amount of money for the compensation of damage

Assessment of the admissibility of the Referral

25 In order to be able to adjudicate tile Applicants Referral the Court needs to first examine whether the Applicant has fulfilled the admissibility requirements laid down in the Constitution further specified in the Law on the Constitutional Court and the Rules of Procedure

4

bull

26 In this respect the Court refers to Article 113 (1) which states that

Constitutional Court decides only on matters referred the court in a legal manner by authorized parties

27 The Court notes at the outset that both in the referral and in the written submission of 17 April 2013 it was clearly stated that the Applicant in the proceedings before the Constituional Court is Qazim Dragusha and not the company Extradragusha the petitioner in the civil proceedings that is the subject of the referral

28 The Court would like to recall that pursuant to Article 214 of the Constitution fundamental rights and freedoms set forth in the Constitution are also valid for legal persons to the extent applicable (See also the Resolution in case NoKl-4109 AAB-RIIVEST University of 27 January 2010)

29 The Court recalls that the term victim in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see the case Eckle v GeT7T1any ECHR judgment of 15 July 1982 Series A no 51 p 30 para 66) The Court further recalls that disregarding a companys legal personality as regards the question of being the person directly affected will be justified only in exceptional circumstances in particular where it is clearly established that it is impossible for the company to apply to the Court through the organs set up under its articles of incorporation or - in the event of liquidation or bankruptcy - through its liquidators or trustees in bankruptcy (see the case Agrotexim and Others v Greece ECHR judgment of 24 October 1995 Series A no 330 p 25 para 66)

30 The Court notes that the Applicant IS the sole owner of the company Extradragusha and has therefore a direct personal interest in the subjectDmatter of the referral (see GJ v Luxembourg no 2115693 para 24 26 October 2000)

31 Therefore the Court finds that in the circumstances of the present case the Applicant may claim to be a victim of the alleged violations of the Convention affecting the rights of Extradragusha

Issue of alleged unreasonable length of civil proceedings before the Municipal Court in Pristina

32 For the purposes of the proceedings before the Constitutional Court the Court observes that the civil proceedings the Applicant complains of commenced on 11 January 2001 However the period which falls within the Courts jurisdiction begins on 15 June 2008 when the Constitution entered into force (see mutatis mutandis Horvat v Croatia no 5158589 para 50 ECHR - 2001-VIII) The proceedings before the Municipal Court in Pristina that the Applicants complains ended on 1 March 2013 Therefore a period of four years eight months and fifteen days falls to be examined by the Court

33 The Court reiterates that in order to determine the reasonableness of the length of time in question regard must be had to the state of the case on 14 June

5

Subject matter

2 The subject matter of the Referral submitted to the Constitutional Court (Court) is the alleged unreasonable length of the civil proceedings instituted by NTPN Extradragusha in 2001 before the Municipal Court in Pristina

Legal basis

3middot The Referral is based on Art 1137 of the Constitution Articles 46 47 48 and 49 of the Law and Rule 56 (2) of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo (hereinafter referred to as the Rules of Procedure)

Proceedings before the Constitutional Court

4 On 1 March 2013 the Applicants representative Bejtush Isufi a lawyer practicing in Pristina submitted the Referral to the Court

5 On 22 March 2013 the President appointed Judge Snezhana Botusharova as Judge Rapporteur and the Review Panel composed of Judges Robert Carolan (Presiding) Almiro Rodrigues and Enver Hasani

6 On 3 April 2013 the Court notified the Applicant personally that the referral had been registered with the Court With the same letter the Applicant was requested to submit to the Court the additional documents in support of the referral including all decisions of the courts The Court also asked to be provided with the written Power of Attorney that Mr Bejtush Isufi is the Applicants authorized representative before the Constitutional Court

7 Also on 3 April 2013 the Court notified the Basic Court in Pristina of the referral and requested it to provide a copy of the certificate of service showing the date when the Decision of the Municipal Court in Pristina Cno 35808 dated 6 April 2012 was served to the Applicant

8 On 17 April 2013 Mr Bejtush Isufi submitted to the Court a copy of the Power of Attorney given to him by the Applicant

9 In addition to the Power of Attorney only two documents ie the decision of the District Court in Pristina Acno6992005 dated 26 February 2008 and the Decision of the Municipal Court in Pristina Cno35809 dated 6 April 2012 were attached to the written submission

10 On 30 April 2013 the Basic Court in Pristina informed the Court that the civil case Cno 35808 was sent to the Basic Court in Pristina Department in Podujevo on 1 March 2013

11 Furthermore on 8 May 2013 the Court received a letter from the Basic Court in the Pristina Department in Podujevo With that letter the Court was informed that the Podujevo Department received the civil case C no 35808 from the

2

Basic Court in Pristina on 6 March 2013 and that the case was registered under new number C 9813

12 Also the Podujevo Department of the Basic Court in Pristina provided the Court with a copy of the certificate of service indicating that the Decision of the Municipal Court in Pristina Cno 35808 dated 6 April 2012 was served on the Applicant on 10 May 2012

13 On 9 September 2013 after having considered the Report of the Judge Rapporteur the Review Panel made a recommendation to the Court on the inadmissibility of the Referral

The facts of the case

14 According to the Applicants allegations on 11 January 2001 the company NTPN Extradragusha submitted a petition to the Municipal Court in Pristina requesting inter alia recognition of its co-ownership rights in the amount of 55 on the real estate (that is comprised of 72 commercial premises) of the shopping centre Urimi located in Podujevo

15 While the Applicant did not provide the Court with a copy it seems that on 19 October 2004 the Municipal Court in Pristina issued Decision C no182001 and declared itself territorially incompetent to consider the petition of Extradragusha of 2001

16 On an unspecified date Extradragusha submitted an appeal against the decision on territorial incompetence of the Municipal Court in Pristina to the District Court in Pristina The Court has not received a copy of that appeal

17 On 26 February 2008 the District Court in Pristina issued Decision Ac No 6992005 and quashed the Decision C no 182001 dated 19 October 2004 returning the case to the first instance Court In the reasoning of the District Court Judgement it was stated that that the Municipal Court based its decision on territorial incompetence on the fact that the respondent party is a resident of Podujevo However the District Court in Pristina found that the appealed ruling is notjust and lawjulfor the reason that in Article 9 of the Contract for the conducting the works in premises it was agreed that in case of court dispute the territorial competent court would be the Municipal Court in Pristina Consequently the District Court asserted the Court of the first instance shall consider the above-mentioned objections during the retrial

18 On 6 April 2012 the Municipal Court in Pristina issued Decision C NO35808 and declared itself again territorially incompetent to decide the case of Extradragusha It stated that after the Decision became final this matter with all the case-file documents would be submitted to the Municipal Court in Podujevo the court with the territorial jurisdiction for the case at hand

19 In the reasoning the Municipal Court referred to the reasoning of the District Court in Pristina in particular to Article 9 of the Contract on performance of work but added that in the Extradragushas civil case the relevant provisions of the Law on Contentious Procedure (LCP) should be applied Namely the

3

Municipal Court referred to Article 411 of the LCP according to which The court within whose territory is located the immovable property is exclusively competent to adjudicate the disputes that are related to the property and other property rights disputes over obstruction to possession of immovable item disputes over the lease of the immovable property or contracts for use of residence and working premises

20 The Municipal Court in Pristina elaborated further that pursuant to Article 661

of the LCP If the law does not determine the exclusive territorialjurisdiction of the court on the subject matter parties may agree for the court with lack of territorial jurisdiction to proceed with first instance adjudication subject to courts jurisdiction on the subject matter Finally the Municipal Court concluded that pursuant to Article 33 of the LCP The court may not approve the agreement of contesting parties that are in contradiction with the b) legal provisions

Applicants Allegation

21 The Applicant alleges in the referral and in particular in the written submission of 17 April 2013 the following Its been more than 12 years and the court has still not solved out the issue of who is competent to review and decide on this case Its been almost a year and the case has not arrived yet in the Basic court in Pristine-the branch in Podujevo Its been more than 12 years and the review of the case on merits has not yet begun and even single session has been scheduled Even Qazim Dragusha has the ight to afair trial regarding the case with number C No 3582008

22 The Applicant claims both in the referral and the written submission of 17 April 2013 that in the period from 2008 to 2012 he sent many letters to the Municipal Court in Pristina urging the review of the case However the Court did not receive any letters

23 Consequently the Applicant alleges that there has been a violation of Articles 22

and 31 of the Constitution as well as Article 6 of the European Convention on Human Rights

24 The Applicant proposes to the Court to declare the Referral admissible and to confirm that there has been violation of Article 12 of the Constitution of the Republic of Kosovo and Article 6 of the European Convention on Human Rights and to allocate a certain amount of money for the compensation of damage

Assessment of the admissibility of the Referral

25 In order to be able to adjudicate tile Applicants Referral the Court needs to first examine whether the Applicant has fulfilled the admissibility requirements laid down in the Constitution further specified in the Law on the Constitutional Court and the Rules of Procedure

4

bull

26 In this respect the Court refers to Article 113 (1) which states that

Constitutional Court decides only on matters referred the court in a legal manner by authorized parties

27 The Court notes at the outset that both in the referral and in the written submission of 17 April 2013 it was clearly stated that the Applicant in the proceedings before the Constituional Court is Qazim Dragusha and not the company Extradragusha the petitioner in the civil proceedings that is the subject of the referral

28 The Court would like to recall that pursuant to Article 214 of the Constitution fundamental rights and freedoms set forth in the Constitution are also valid for legal persons to the extent applicable (See also the Resolution in case NoKl-4109 AAB-RIIVEST University of 27 January 2010)

29 The Court recalls that the term victim in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see the case Eckle v GeT7T1any ECHR judgment of 15 July 1982 Series A no 51 p 30 para 66) The Court further recalls that disregarding a companys legal personality as regards the question of being the person directly affected will be justified only in exceptional circumstances in particular where it is clearly established that it is impossible for the company to apply to the Court through the organs set up under its articles of incorporation or - in the event of liquidation or bankruptcy - through its liquidators or trustees in bankruptcy (see the case Agrotexim and Others v Greece ECHR judgment of 24 October 1995 Series A no 330 p 25 para 66)

30 The Court notes that the Applicant IS the sole owner of the company Extradragusha and has therefore a direct personal interest in the subjectDmatter of the referral (see GJ v Luxembourg no 2115693 para 24 26 October 2000)

31 Therefore the Court finds that in the circumstances of the present case the Applicant may claim to be a victim of the alleged violations of the Convention affecting the rights of Extradragusha

Issue of alleged unreasonable length of civil proceedings before the Municipal Court in Pristina

32 For the purposes of the proceedings before the Constitutional Court the Court observes that the civil proceedings the Applicant complains of commenced on 11 January 2001 However the period which falls within the Courts jurisdiction begins on 15 June 2008 when the Constitution entered into force (see mutatis mutandis Horvat v Croatia no 5158589 para 50 ECHR - 2001-VIII) The proceedings before the Municipal Court in Pristina that the Applicants complains ended on 1 March 2013 Therefore a period of four years eight months and fifteen days falls to be examined by the Court

33 The Court reiterates that in order to determine the reasonableness of the length of time in question regard must be had to the state of the case on 14 June

5

Basic Court in Pristina on 6 March 2013 and that the case was registered under new number C 9813

12 Also the Podujevo Department of the Basic Court in Pristina provided the Court with a copy of the certificate of service indicating that the Decision of the Municipal Court in Pristina Cno 35808 dated 6 April 2012 was served on the Applicant on 10 May 2012

13 On 9 September 2013 after having considered the Report of the Judge Rapporteur the Review Panel made a recommendation to the Court on the inadmissibility of the Referral

The facts of the case

14 According to the Applicants allegations on 11 January 2001 the company NTPN Extradragusha submitted a petition to the Municipal Court in Pristina requesting inter alia recognition of its co-ownership rights in the amount of 55 on the real estate (that is comprised of 72 commercial premises) of the shopping centre Urimi located in Podujevo

15 While the Applicant did not provide the Court with a copy it seems that on 19 October 2004 the Municipal Court in Pristina issued Decision C no182001 and declared itself territorially incompetent to consider the petition of Extradragusha of 2001

16 On an unspecified date Extradragusha submitted an appeal against the decision on territorial incompetence of the Municipal Court in Pristina to the District Court in Pristina The Court has not received a copy of that appeal

17 On 26 February 2008 the District Court in Pristina issued Decision Ac No 6992005 and quashed the Decision C no 182001 dated 19 October 2004 returning the case to the first instance Court In the reasoning of the District Court Judgement it was stated that that the Municipal Court based its decision on territorial incompetence on the fact that the respondent party is a resident of Podujevo However the District Court in Pristina found that the appealed ruling is notjust and lawjulfor the reason that in Article 9 of the Contract for the conducting the works in premises it was agreed that in case of court dispute the territorial competent court would be the Municipal Court in Pristina Consequently the District Court asserted the Court of the first instance shall consider the above-mentioned objections during the retrial

18 On 6 April 2012 the Municipal Court in Pristina issued Decision C NO35808 and declared itself again territorially incompetent to decide the case of Extradragusha It stated that after the Decision became final this matter with all the case-file documents would be submitted to the Municipal Court in Podujevo the court with the territorial jurisdiction for the case at hand

19 In the reasoning the Municipal Court referred to the reasoning of the District Court in Pristina in particular to Article 9 of the Contract on performance of work but added that in the Extradragushas civil case the relevant provisions of the Law on Contentious Procedure (LCP) should be applied Namely the

3

Municipal Court referred to Article 411 of the LCP according to which The court within whose territory is located the immovable property is exclusively competent to adjudicate the disputes that are related to the property and other property rights disputes over obstruction to possession of immovable item disputes over the lease of the immovable property or contracts for use of residence and working premises

20 The Municipal Court in Pristina elaborated further that pursuant to Article 661

of the LCP If the law does not determine the exclusive territorialjurisdiction of the court on the subject matter parties may agree for the court with lack of territorial jurisdiction to proceed with first instance adjudication subject to courts jurisdiction on the subject matter Finally the Municipal Court concluded that pursuant to Article 33 of the LCP The court may not approve the agreement of contesting parties that are in contradiction with the b) legal provisions

Applicants Allegation

21 The Applicant alleges in the referral and in particular in the written submission of 17 April 2013 the following Its been more than 12 years and the court has still not solved out the issue of who is competent to review and decide on this case Its been almost a year and the case has not arrived yet in the Basic court in Pristine-the branch in Podujevo Its been more than 12 years and the review of the case on merits has not yet begun and even single session has been scheduled Even Qazim Dragusha has the ight to afair trial regarding the case with number C No 3582008

22 The Applicant claims both in the referral and the written submission of 17 April 2013 that in the period from 2008 to 2012 he sent many letters to the Municipal Court in Pristina urging the review of the case However the Court did not receive any letters

23 Consequently the Applicant alleges that there has been a violation of Articles 22

and 31 of the Constitution as well as Article 6 of the European Convention on Human Rights

24 The Applicant proposes to the Court to declare the Referral admissible and to confirm that there has been violation of Article 12 of the Constitution of the Republic of Kosovo and Article 6 of the European Convention on Human Rights and to allocate a certain amount of money for the compensation of damage

Assessment of the admissibility of the Referral

25 In order to be able to adjudicate tile Applicants Referral the Court needs to first examine whether the Applicant has fulfilled the admissibility requirements laid down in the Constitution further specified in the Law on the Constitutional Court and the Rules of Procedure

4

bull

26 In this respect the Court refers to Article 113 (1) which states that

Constitutional Court decides only on matters referred the court in a legal manner by authorized parties

27 The Court notes at the outset that both in the referral and in the written submission of 17 April 2013 it was clearly stated that the Applicant in the proceedings before the Constituional Court is Qazim Dragusha and not the company Extradragusha the petitioner in the civil proceedings that is the subject of the referral

28 The Court would like to recall that pursuant to Article 214 of the Constitution fundamental rights and freedoms set forth in the Constitution are also valid for legal persons to the extent applicable (See also the Resolution in case NoKl-4109 AAB-RIIVEST University of 27 January 2010)

29 The Court recalls that the term victim in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see the case Eckle v GeT7T1any ECHR judgment of 15 July 1982 Series A no 51 p 30 para 66) The Court further recalls that disregarding a companys legal personality as regards the question of being the person directly affected will be justified only in exceptional circumstances in particular where it is clearly established that it is impossible for the company to apply to the Court through the organs set up under its articles of incorporation or - in the event of liquidation or bankruptcy - through its liquidators or trustees in bankruptcy (see the case Agrotexim and Others v Greece ECHR judgment of 24 October 1995 Series A no 330 p 25 para 66)

30 The Court notes that the Applicant IS the sole owner of the company Extradragusha and has therefore a direct personal interest in the subjectDmatter of the referral (see GJ v Luxembourg no 2115693 para 24 26 October 2000)

31 Therefore the Court finds that in the circumstances of the present case the Applicant may claim to be a victim of the alleged violations of the Convention affecting the rights of Extradragusha

Issue of alleged unreasonable length of civil proceedings before the Municipal Court in Pristina

32 For the purposes of the proceedings before the Constitutional Court the Court observes that the civil proceedings the Applicant complains of commenced on 11 January 2001 However the period which falls within the Courts jurisdiction begins on 15 June 2008 when the Constitution entered into force (see mutatis mutandis Horvat v Croatia no 5158589 para 50 ECHR - 2001-VIII) The proceedings before the Municipal Court in Pristina that the Applicants complains ended on 1 March 2013 Therefore a period of four years eight months and fifteen days falls to be examined by the Court

33 The Court reiterates that in order to determine the reasonableness of the length of time in question regard must be had to the state of the case on 14 June

5

Municipal Court referred to Article 411 of the LCP according to which The court within whose territory is located the immovable property is exclusively competent to adjudicate the disputes that are related to the property and other property rights disputes over obstruction to possession of immovable item disputes over the lease of the immovable property or contracts for use of residence and working premises

20 The Municipal Court in Pristina elaborated further that pursuant to Article 661

of the LCP If the law does not determine the exclusive territorialjurisdiction of the court on the subject matter parties may agree for the court with lack of territorial jurisdiction to proceed with first instance adjudication subject to courts jurisdiction on the subject matter Finally the Municipal Court concluded that pursuant to Article 33 of the LCP The court may not approve the agreement of contesting parties that are in contradiction with the b) legal provisions

Applicants Allegation

21 The Applicant alleges in the referral and in particular in the written submission of 17 April 2013 the following Its been more than 12 years and the court has still not solved out the issue of who is competent to review and decide on this case Its been almost a year and the case has not arrived yet in the Basic court in Pristine-the branch in Podujevo Its been more than 12 years and the review of the case on merits has not yet begun and even single session has been scheduled Even Qazim Dragusha has the ight to afair trial regarding the case with number C No 3582008

22 The Applicant claims both in the referral and the written submission of 17 April 2013 that in the period from 2008 to 2012 he sent many letters to the Municipal Court in Pristina urging the review of the case However the Court did not receive any letters

23 Consequently the Applicant alleges that there has been a violation of Articles 22

and 31 of the Constitution as well as Article 6 of the European Convention on Human Rights

24 The Applicant proposes to the Court to declare the Referral admissible and to confirm that there has been violation of Article 12 of the Constitution of the Republic of Kosovo and Article 6 of the European Convention on Human Rights and to allocate a certain amount of money for the compensation of damage

Assessment of the admissibility of the Referral

25 In order to be able to adjudicate tile Applicants Referral the Court needs to first examine whether the Applicant has fulfilled the admissibility requirements laid down in the Constitution further specified in the Law on the Constitutional Court and the Rules of Procedure

4

bull

26 In this respect the Court refers to Article 113 (1) which states that

Constitutional Court decides only on matters referred the court in a legal manner by authorized parties

27 The Court notes at the outset that both in the referral and in the written submission of 17 April 2013 it was clearly stated that the Applicant in the proceedings before the Constituional Court is Qazim Dragusha and not the company Extradragusha the petitioner in the civil proceedings that is the subject of the referral

28 The Court would like to recall that pursuant to Article 214 of the Constitution fundamental rights and freedoms set forth in the Constitution are also valid for legal persons to the extent applicable (See also the Resolution in case NoKl-4109 AAB-RIIVEST University of 27 January 2010)

29 The Court recalls that the term victim in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see the case Eckle v GeT7T1any ECHR judgment of 15 July 1982 Series A no 51 p 30 para 66) The Court further recalls that disregarding a companys legal personality as regards the question of being the person directly affected will be justified only in exceptional circumstances in particular where it is clearly established that it is impossible for the company to apply to the Court through the organs set up under its articles of incorporation or - in the event of liquidation or bankruptcy - through its liquidators or trustees in bankruptcy (see the case Agrotexim and Others v Greece ECHR judgment of 24 October 1995 Series A no 330 p 25 para 66)

30 The Court notes that the Applicant IS the sole owner of the company Extradragusha and has therefore a direct personal interest in the subjectDmatter of the referral (see GJ v Luxembourg no 2115693 para 24 26 October 2000)

31 Therefore the Court finds that in the circumstances of the present case the Applicant may claim to be a victim of the alleged violations of the Convention affecting the rights of Extradragusha

Issue of alleged unreasonable length of civil proceedings before the Municipal Court in Pristina

32 For the purposes of the proceedings before the Constitutional Court the Court observes that the civil proceedings the Applicant complains of commenced on 11 January 2001 However the period which falls within the Courts jurisdiction begins on 15 June 2008 when the Constitution entered into force (see mutatis mutandis Horvat v Croatia no 5158589 para 50 ECHR - 2001-VIII) The proceedings before the Municipal Court in Pristina that the Applicants complains ended on 1 March 2013 Therefore a period of four years eight months and fifteen days falls to be examined by the Court

33 The Court reiterates that in order to determine the reasonableness of the length of time in question regard must be had to the state of the case on 14 June

5

bull

26 In this respect the Court refers to Article 113 (1) which states that

Constitutional Court decides only on matters referred the court in a legal manner by authorized parties

27 The Court notes at the outset that both in the referral and in the written submission of 17 April 2013 it was clearly stated that the Applicant in the proceedings before the Constituional Court is Qazim Dragusha and not the company Extradragusha the petitioner in the civil proceedings that is the subject of the referral

28 The Court would like to recall that pursuant to Article 214 of the Constitution fundamental rights and freedoms set forth in the Constitution are also valid for legal persons to the extent applicable (See also the Resolution in case NoKl-4109 AAB-RIIVEST University of 27 January 2010)

29 The Court recalls that the term victim in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see the case Eckle v GeT7T1any ECHR judgment of 15 July 1982 Series A no 51 p 30 para 66) The Court further recalls that disregarding a companys legal personality as regards the question of being the person directly affected will be justified only in exceptional circumstances in particular where it is clearly established that it is impossible for the company to apply to the Court through the organs set up under its articles of incorporation or - in the event of liquidation or bankruptcy - through its liquidators or trustees in bankruptcy (see the case Agrotexim and Others v Greece ECHR judgment of 24 October 1995 Series A no 330 p 25 para 66)

30 The Court notes that the Applicant IS the sole owner of the company Extradragusha and has therefore a direct personal interest in the subjectDmatter of the referral (see GJ v Luxembourg no 2115693 para 24 26 October 2000)

31 Therefore the Court finds that in the circumstances of the present case the Applicant may claim to be a victim of the alleged violations of the Convention affecting the rights of Extradragusha

Issue of alleged unreasonable length of civil proceedings before the Municipal Court in Pristina

32 For the purposes of the proceedings before the Constitutional Court the Court observes that the civil proceedings the Applicant complains of commenced on 11 January 2001 However the period which falls within the Courts jurisdiction begins on 15 June 2008 when the Constitution entered into force (see mutatis mutandis Horvat v Croatia no 5158589 para 50 ECHR - 2001-VIII) The proceedings before the Municipal Court in Pristina that the Applicants complains ended on 1 March 2013 Therefore a period of four years eight months and fifteen days falls to be examined by the Court

33 The Court reiterates that in order to determine the reasonableness of the length of time in question regard must be had to the state of the case on 14 June

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2008 (see among other authorities the case Styranowski v Poland no 2861695 sect 46 ECHR 1998-VIII)

34middot The Court further reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law particularly the complexity of the case the conduct of the Applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see among many other authorities Frydlender v France [GC] no 3097996 para 43 ECHR 2000-VII)

35 The Court notes that in the period to be taken into account one decision was issued in the Extradragusha case ie decision of the Municipal Court in Pristina on 6 April 2012 and that after it was finalised together with all court case- file was sent to the Municipal Court in Pristina Branch Podujevo as the territorial competent on 1 March 2013 ie the same date when the referral was lodged to the Constitutional Court

36 The Court notes at the outset that there is appears to be a delay in deciding on issue of territorial jurisdiction by the Municipal Court in Pristina

37 The Court reiterates that Article 6 para 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements including the obligation to hear cases within a reasonable time (Frydlender v France op cit para 45)

38 As to Extradragushas conduct the Court refers to its jurisprudence established in the case Vasic (see the Resolution on Inadmissibility of 13 July 2012) that referred case-law of the European Court on Human Rights as follows However even if the national court itself is responsible for the delays in proceedings the Applicant has to have objected thereto in order to prove undue delay and that he would not be held responsible for the undue delay

38 The Court notes that while the Applicant claims that he objected to the delay related to the period from 2008-2012 he has not showed the Court that he has exhausted all effective legal remedies available under applicable law pursuant to Article 1137 of the Constitution

39 The Court also notes that the whole dispute of territorial jurisdiction was initiated by the Applicant and was eventually solved on 6 April 2012

40 Having regard to all circumstances of the case the Court concludes that the Applicant did not substantiate violation of his right to fair trial due to unreasonable time as regards to the civil court proceedings before the Municipal Court in Pristina

41 It follows that the Referral is manifestly ill-founded pursuant to Rule 36 1 (c) of the Rules of Procedure which provides that The Court may only deal with Referrals if c) the Referral is not manifestly ill-founded

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42 Accordingly the Court finds that the Referral was not referred to the Court in a legal manner pursuant to Article 113 (1) of the Constitution Article 48 of the Law and Rule 36 (2) (d) of the Rules and as such is inadmissible as manifestly ill-founded since the Applicant did not sufficiently substantiate his claim

FOR THESE REASONS

The Constitutional Court pursuant to Article 113 (1) of the Constitution Article 48 of the Law and Rule 36 (2) (d) ofthe Rules of the Procedure unanimously

DECIDES

I TO REJECT the Referral as 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

IV TO DECLARE this Decision immediately effective

lt e =

-ilPimiddot Dr Enver Hasani

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42 Accordingly the Court finds that the Referral was not referred to the Court in a legal manner pursuant to Article 113 (1) of the Constitution Article 48 of the Law and Rule 36 (2) (d) of the Rules and as such is inadmissible as manifestly ill-founded since the Applicant did not sufficiently substantiate his claim

FOR THESE REASONS

The Constitutional Court pursuant to Article 113 (1) of the Constitution Article 48 of the Law and Rule 36 (2) (d) ofthe Rules of the Procedure unanimously

DECIDES

I TO REJECT the Referral as 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

IV TO DECLARE this Decision immediately effective

lt e =

-ilPimiddot Dr Enver Hasani

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