Constitutional Court

KI148/18, Applicant: ESBI Consultants Limited, Constitutional review of Judgment AC-I-18-0090 of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters, of 31 May 2018

KI148/18, Resolution on Inadmissibility of 11 March 2020, published on 16 April 2020

Keywords: legal person, individual referral, constitutional review of the challenged judgment of the Special Chamber of the Supreme Court, manifestly ill-founded

In 2004, the Applicant entered into a contract with the Kosovo Trust Agency (hereinafter: KTA), under which the Applicant was engaged by the KTA to manage and administer the Kosovo Energy Corporation (hereinafter: KEK), which at that time was under the administration of the KTA. This contract provided that for this service KEK and the KTA would pay to the Applicant the monetary amount provided for in the contract.

Pursuant to the aforementioned agreement, the KTA paid to the claimant the amount calculated for the first year of KEK’s management. However, the KTA did not pay to the claimant monetary compensation for the second and third year.

The Applicant addressed the KTA with a request seeking to be paid a monetary compensation for his KEK management services for the second and third year of management, all this on the basis of on the aforementioned contract.

Given the fact that the Applicant failed to realize its request before the KTA, in 2008 the Applicant filed a claim against the KTA before the Special Chamber of the Supreme Court of Kosovo on Kosovo Agency Related Matters for determination of the debt and payment of pecuniary claim.

This appeal was reviewed by the Specialized Panel and the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters, and both instances concluded that the Applicant did not comply with the rules provided for in special terms of the contract aimed at resolving the succes fee disputes, and therefore the amount of the claim cannot be asserted with certainty.

The Applicant alleges that the regular courts violated its constitutionally guaranteed rights to (a) equal protection of rights before the court, (b) the right to a reasoned decision and (c) the right to trial within a reasonable time, respectively Article 31 of the Constitution in conjunction with Article 6 of the ECHR.

The Court ascertained that the arguments raised in the Applicant’s Referral did not in any way justify the alleged violations of the constitutional rights  which the Applicant refers to and that the Applicant failed to substantiate allegations for a violation of the rights protected by the Constitution and the Convention, therefore, the Court concluded that the Applicant’s allegations with respect to (a) equal protection of rights before the court are manifestly ill-founded on constitutional basis; (b) non-reasoned judicial decision are manifestly ill-founded on constitutional basis; and (c) the right to trial within a reasonable time, are manifestly ill-founded on constitutional basis and are therefore inadmissible, all in accordance with paragraphs 1 and 7 of Article 113 of the Constitution and paragraph (2) of Rule 39 of the Rules of Procedure.