Constitutional Court

Judges Almiro Rodrigues and Gjyljeta Mushkolaj dissented from the Court’s Judgment in this tax matter, which affirmed the Supreme Court’s decision rejecting the Applicant’s claim that he had not received a fair trial. First, the dissent asserted that the Supreme Court’s holding was unfair because it failed to issue a reasoned written decision. The dissent noted that the Applicant complained to the Supreme Court that the IRB’s second decision did not follow the Supreme Court’s instructions. The dissent asserted that the IRB decision was conclusory and formulaic, lacking factual and legal analysis, and did not provide a reasoned disposition of the Applicant’s claim. Second, the dissent contended that the IRB, like a court, must provide a fair trial. The dissent asserted that the right to a fair trial encompasses a fundamental right to judicial protection, including rights to present arguments and evidence, a reasoned court decision, and equality of arms. The dissent recognized that a reasoned decision did not require a detailed answer to every challenge, although a response to a fundamental argument is necessary, citing Hiro Balani v. Spain, The dissent argued that neither the IRB nor the Supreme Court resolved the Applicant’s fundamental arguments in a reasoned decision, leaving the Applicant to guess whether the issues were or intentionally omitted. In sum, the dissent argued that the decisions by the IRB and the Supreme Court were defective for three reasons: they did not reconcile the arguments and evidence presented by the Applicant; they violated the rights to equality of arms and an adversarial process; and, they was insufficiently supported. Accordingly, the dissent contended, violations of Article 31 and ECHR Article 6 occurred, and the Court should have reversed the Supreme Court’s judgment and remanded the case to the Supreme Court for further proceedings