Constitutional dilemma on the immediate return of the lawsuit

by, Mag. Florjan KALAJA

Abstract

This paper aims to analyze the Constitutional dilemma on the immediate return of the lawsuit. Since 2001, the third paragraph of Article 154 / a of the Code of Civil Procedure provides: ‘’ When the lawsuit does not meet the conditions mentioned in this chapter, the judge returns it to the plaintiff at the time of its filing or he is notified in writing of the completion of the deficiencies and, after the filing date is indicated in the lawsuit, a deadline is set for filling in the gaps. Until this date, the lawsuit remains without action. “ In as specific case the Court of Appeal decided to immediately return the request for the issuance of an execution order, concluding that the request had not fulfilled the elements of the respective accompanying documentation as required by Articles 154 – 156 of the Code of Civil Procedure. Through this interim decision it was asked the Constitutional Court to repeal the legal provision that legitimizes the court to immediately return the lawsuit 2 . To our opinion the third paragraph of Article 154 / a of the Code of Civil Procedure, in the part that provides “returns to the plaintiff at the time of its submission or”, is contrary to Articles 4, 17, 42 of the Constitution and Article 6 of the KEDNJ. In similar case, to my personal experience, it has never been decided to immediately return the lawsuit or the request, according to the provision of article 154 / a of the Code of Civil Procedure. The inconclusive decision-making of the return of the request or lawsuit, in my case law, was preceded by the intermediate decision-making of ascertaining the procedural shortcomings of the procedural act and was further accompanied by the non-fulfillment of judicial duties by the plaintiff. The same approach was held pe the author in the capacity of Assistant Magistrate in the High Court and further in the capacity of a judge of the Court of Appeal of Durres.

How to cite: Kalaja, F. (2022). Constitutional dilemma on the immediate return of the lawsuit. Jus & Justicia, 16(2), 52–68.

https://doi.org/10.58944/rlzb3335