Constitutional Court

KI 57/18, Constitutional review of Decision Ac. No. 5434/2012 of the Court of Appeals of Kosovo of 14 February 2018

KI 57/18, Applicant Hajriz Ferizi

Judgment of 5 February 2020, published on 10 March 2020.

Keywords: Individual referral, non-reasoned court decision, equality before the law 

The Applicant alleged that the challenged Judgment Ac. No. 5434/2012 of the Court of Appeals of 14 February 2018 violated his right to fair and impartial trial guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR [right to a fair trial]. According to the Applicant, this right together with the right to equality before the law and eventual discrimination thereof was based it on the allegation of not addressing his allegations by the Court of Appeals regarding the attribution of the executive title of the conclusion of the Municipality of Mitrovica, on the statutory limitation of debt and on the benefit from the law on debt forgiveness.

The Court noted that the failure to address or eventually deal with the substantive allegations of the Applicants are constituent elements of the right to a reasoned court decision, which are part of the guarantees of Article 31 of the Constitution and Article 6 of the ECHR, and in this regard are also dealt with by the Court (see, inter alia, Judgments of the Court in the cases: KI135/14 of 8 February 2016; KI18/16 of 13 July 2016; KI22/16 of 2 May 2017; KI24/17 of 19 July 2019, KI35/18 of 6 January 2020, Resolution in case KI143/16 of 8 June 2018).

The Court notes that it already has a consolidated case law with regard to the right to a reasoned court decision guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR. This case law was built based on the ECtHR case law, including, but not limited to cases Hadjianastassiou v. Greece, Judgment of 16 December 1992; Van de Hurk v. the Netherlands, Judgment of 19 April 1994; Hiro Balani v. Spain, Judgment of 9 December 1994; Higgins and Others v. France, Judgment of 19 February 1998 and its own cases KI22/16, Naser Husaj, Judgment of 9 June 2017; KI97/16, Applicant “IKK Classic”, Judgment of 9 January 2018; and KI143/16, Fc Mretebi v. Georgia, paragraph 31, Judgment of the ECtHR, of 31 July 2007, Abdulaziz, Cabales and Balkandali v. United Kingdom, applications no. 9214/80; 9473/81 and 9474/81, 24 April 1985, paragraph 72)”.

(….and others) and came to conclusion that the Basic Court and the Court of Appeals dealt with the Applicant’s substantive allegations and by applying the applicable law responded  to these allegations. The Court further finds that the court decisions in their essence are not arbitrary, as well as the court proceedings in their entirety are not indicative of any constitutional violation.

The Court also found that the Applicant has not substantiated by any evidence the alleged inequality before the law. He failed to prove that he was not provided equal legal protection or that on whatever grounds he may have been discriminated against, which are the fundamental requirements of Article 24 of the Constitution. Moreover, the Applicant has only mentioned this constitutional norm in the Referral but has not provided any reasoning under what conditions and circumstances it may have been violated.

The Court, after having considered the Referral in all respects, concluded that the Referral is not reasoned on constitutional basis and that the Applicant has not in any way proved or substantiated by evidence the allegation of violation of a constitutional right; therefore, in accordance with Rule 39 (2) of the Rules of Procedure, the Referral is declared inadmissible as manifestly ill-founded.