Constitutional Court

KI07/18 Applicant: “Çeliku Rollers” l.l.c. Constitutional review of Judgment E. Rev. No. 14/2017, of 14 September 2017

KI/07/18, Judgment of 18 December 2019, published on 20 January 2020

Keywords: individual referral, legal person, violation of constitutional rights, Article 31 – Right to Fair and Impartial Trial in conjunction with Article 6 (Right to a Fair Trial) of the European Convention on Human Rights;

The main cause of the dispute between the Applicant and N.P. “Vali AL-PVC”, and who had signed an initial contract and then agreed for additional work, was the quality of aluminum profiles for the glass holders in the residential building “Plisi” in Gjilan, and which was constructed by the Applicant.  The latter had concluded that the profiles were of inadequate quality and consequently ordered their removal and replacement by another company. N.P. “Vali AL-PVC” initially filed the proposal for the imposition of a security measure with the Municipal Court in Gjilan requesting that the Applicant be prohibited from installing new profiles, and subsequently filed a claim with the Municipal Court in Gjilan, seeking the full performance of the Contract and compensation for the work completed. The Applicant filed counter-claim. The regular courts had ruled in favor of the N.P. “Vali AL-PVC”. The contested matter throughout the proceedings before the regular courts turned out to be the expertise of the judicial expert, an expertise which the Applicant has contested throughout the regular courts, including the Constitutional Court. The Applicant in substance alleges that the Judgment [E. Rev. No. 14/2017] of the Supreme Court of 14 September 2017 was rendered in violation of his rights and freedoms guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, because according to it, violated (i) the principle of equality of arms as a result of expert bias; (ii) the Applicant’s right to be heard as a result of improper examination of evidence; and (iii) the right to a reasoned court decision.

In examining the merits of the case, the Court first elaborated the general principles of the case law of the European Court of Human Rights in relation to (i) expert reports, expert bias and relevant effects on the principle of equality of arms; (ii) the obligation of the regular courts to assess testimonies and evidence; and (iii) the right to a reasoned court decision.

As to the first case, the Court, in addition to elaborating on the general principles of the European Court of Human Rights in this respect, also examined in detail the relevant case law of this Court, including the cases Letinčić v. Croatia; Sara Lind Eggertsdottir v. Iceland; Mantovanelli v. France; Devinar v. Slovenia; and Van Kück v. Germany, to clarify the circumstances in which the European Court of Human Rights has found a violation of Article 6 of the European Convention on Human Rights concerning the lack of expert neutrality or even the possibility of effective participation and challenging the findings of the respective reports. The Court in the context held that as regards (i) the impartiality of the expert, the Applicant does not substantiate legitimate doubts as to the expert’s impartiality, nor why the latter may be objectively justified in the circumstances of the present case, moreover, based on the case law of the European Court of Human Rights, it cannot be concluded that the expert concerned was not neutral or impartial; (ii) the procedure followed for the compilation of the expertise report, the Applicant having had the opportunity to effectively participate and contest its findings; and (iii) determining new expertise, the Applicant has not sufficiently argued the deficiencies and uncertainties of the contested report during the review sessions and has not sufficiently substantiated his request to determine new expertise.

As to the second issue, the Court, in addition to elaborating on the general principles of the European Court of Human Rights in this respect, also examined in detail the relevant case law of the European Court of Human Rights, including cases Kraska v. Switzerland and Perez v. France to clarify the circumstances in which this Court has found a violation of Article 6 of the European Convention on Human Rights in respect of failure to comply with the obligation of the courts to properly examine the submissions, arguments and evidence adduced by the parties. In this context, the Court held that the Applicant’s submissions, arguments and evidence, throughout the proceedings, had been properly examined by the regular courts. The Court held that a finding to the contrary finds no support in the applicable law nor in the case law of the European Court of Human Rights.

As to the third case, the Court referred to its already consolidated case-law regarding the reasoned court decision and held that the Applicant’s substantive allegations were sufficiently reasoned throughout the regular courts.

Finally, applying the abovementioned principles and criteria, the Court held that the Judgment [E. Rev. No. 14/2017] of 14 September 2017 of the Supreme Court was rendered in compliance with Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights.