Constitutional Court

KI123/19, Applicant “Suva Rechtsabteilung”, Constitutional review of Judgment Ae. No. 146/17 of the Court of Appeals of Kosovo, of 26 February 2019, Judgment adopted on 13 May 2020 and published on 18 June 2020

Keywords: individual referral, legal person, violation of constitutional rights, Article 31 – the right to fair and impartial trial, the right to a reasoned judicial decision, the principle of legal certainty, divergence in the case law of regular courts

As a result of an accident caused by the insured person of the Kosovo Insurance Bureau in 2012, the Applicant’s insured person M.B. had sustained injuries. In 2013, the Applicant’s insured person had received medical treatment and compensation due to incapacity to work for an indefinite period in the Swiss Confederation, which had been paid by the Applicant. On 13 January 2015, the Applicant, on the basis of his right to subrogation, filed a claim for reimbursement with the Basic Court in Prishtina in the amount of 8,918.61 Euros. On 25 January 2015, the KIB and the Applicant’s insured person had reached an extrajudicial agreement [certified in the Basic Court in Peja, C. No. 185/13, 25 January 2015], where the latter was reimbursed by the KIB in the amount of 1,000 Euros. On 14 April 2017, the Basic Court by Judgment [II.EK. no.8/15] rejected the claimant’s statement of claim in its entirety. The Basic Court found that following the conclusion of the extrajudicial agreement, the Applicant’s insured person had exhausted his right to claim compensation of damages. On 26 February 2019, the Court of Appeals, [Judgment Ae.No.146/17] rejected as unfounded the appeal of the Applicant and confirmed the Judgment of the Basic Court.

The Applicant alleged that the Judgment [Ae. no. 146/17] of the Court of Appeals of Kosovo, of 26 February 2019 has been rendered in violation of its rights and freedoms guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR, due to lack of the reasoning of the court decision , and in breach of the principle of legal certainty, because according to it, the Supreme Court when issuing this Judgment had acted contrary to its case law in at least six (6) cases which he had submitted to the Court in support of his arguments.

When examining the merits of the case, the Court elaborated on (i) the case law on the right to a reasoned court decision and (ii) the basic principles relating to the consistency of case law, as well as the relevant criteria on the basis of which the European Court of Justice Human Rights assesses whether the lack of consistency, namely the divergence in the case law is a violation of Article 6 of the ECHR, respectively the three basic criteria to determine whether an alleged divergence constitutes a violation of Article 6 of the ECHR, including if: (a) divergences in the case law are “profound and long-standing”; (b) domestic law defines mechanisms capable of resolving such divergences, and (c) if those mechanisms have been enforced and to what effect.

1. The Court, having applied the above-mentioned principles and criteria, with regard to the first claim of the Applicant concerning the lack of a reasoned court decision, found that in the issuance of the Judgment [Ae. no. 146/17] of 26 February 2019 of the Court of Appeals, the Court of Appeals failed to reason the Applicant’s substantive allegations, and consequently its guaranteed right under Article 31 of the Constitution in respect of paragraph 1 of Article 6 of the ECHR has been violated.
2. As for the second allegation of the Applicant concerning the principle of legal certainty as a result of the conflicting decisions of the case law of the Court of Appeals and the Supreme Court, the Court after having elaborated on the basic principles and criteria set by the Court and the ECtHR in this respect, and applied them in the circumstances of the present case, found that neither the number of alleged contradictory judgments nor the time period within which these judgments were issued create sufficient grounds to justify the allegation for a violation of the principle of certainty, as a result of contradictory decisions.