Constitutional Court

KI135/18, Applicant: Hava Simnica; constitutional review of Judgment Rev. No. 112/2018 of the Supreme Court of Kosovo, of 7 May 2018

KI135/18, Judgment adopted on 19 July 2019, published on 21.08.2019 

Keywords: individual referral, civil procedure, equality before the law, right to a fair trial, admissible referral, violation of Article 31 of the Constitution

The Applicant alleged that the Supreme Court violated her right to equality before the law and the right to a fair trial, deciding contrary to its case law in the entirely same circumstances because: “…for the same circumstances – completely the same in our case has decided quite differently, giving quite different reasons…” In support of her allegation, the Applicant attached to her Referral Judgments Rev. No. 55/2010 of 18 March 2012 and Rev. No. 349/2016, of 11 January 2017, and alleged that her case should have been decided similarly as it was decided in these Judgments.

The Court first assessed whether the Referral has met with the admissibility requirements as laid down in the Constitution and further specified in the Law on the Constitutional Court and the Rules of Procedure of the Court. After having entirely considered the Applicant’s allegations, the Court considered that the Supreme Courts failed to explain the relationship between the facts presented and the application of the applicable law to which it referred, namely to explain how they came in correlation with each other and how they have influenced the conclusion of the Supreme Court to modify the judgments of the lower instance courts and also to modify its legal position regarding the prescription of the object sought by the lawsuit, respectively claim for monthly rent, in the name of the lost maintenance (alimony).

Furthermore, the Court held that the Supreme Court, in the Applicant’s case, failed to comply with its obligations under Article 6.1 of the ECHR for a reasoned and reasonable decision, when it concluded that the Applicant’s request should be rejected as ungrounded because of its prescription under applicable law, as long as it had in earlier cases granted Applicants A. and B. the right to claim payment of monthly rent on behalf of the lost maintenance (alimony).

In conclusion, the Court, having regard to all the reasoning set out above, found that the challenged Judgment violates the Applicant’s right to a fair trial, as guaranteed by Article 31.1 of the Constitution and Article 6.1 of the ECHR, because the reasoning of the judgment is contrary to the case law of the Supreme Court itself. Therefore, the Court concluded that the challenged Judgment of the Supreme Court did not respect the constitutional standard of reasoning of the court decision.