Constitutional Court

Case No. K38 / 19, Applicant: Avdi Mujaj, Constitutional review of the Judgment , Rev. no. 285/2018 of the Supreme Court of the Republic of Kosovo, of 1 October 2018 

Keywords: individual referral, property dispute, composition of the trial panel, right to a fair trial, impartiality of the court 

The Applicant, in the capacity of the buyer, had entered into a  Contract on sale with H. D.,  the subject of the Contract on the sale being the  purchase of immovable property consisting of a house and some other adjacent facilities constructed on the cadastral parcel [no. 5393/18], with an area of ​​480 m².

The Applicant’s statement of claim was initially fully upheld by the Judgment [C. no. 56/2008] of the Municipal Court in Peja, of 12 January 2010, whereby it was decided that he is the owner of the disputed cadastral parcel with a total area of ​​480 m² and that all the heirs of the first line of H. D., in total eight of them, must recognize the Applicant’s right of ownership and allow the property in question to be registered with the Municipal Cadastral Office in Peja.

Subsequently, the District Court by Judgment [Ac. no. 101/10] of 16 March 2011: (i) partially upheld the Applicant’s statement of claim, by confirming that the Applicant was the owner of the cadastral parcel on the basis of the adverse possession [no. 5393/18], in an area of ​​455 m2 [not 480 m²]; and (ii) obliged the respondents to acceot the Applicants’ ownership and allow the property to be registered with the Municipal Cadastral Office in Peja. In the composition of the 3 member trial panel of the District Court, was also the Judge I. K.

Against the Judgment [Ac. no. 101/10] of the District Court, the State Prosecutor submited a request for protection of legality while a request for revision  was filed by the Applicant.

The Supreme Court by Decision [Rev-Mlc. no. 253/2011] of 27 August 2013, decided to uphold as founded both the request for protection of the legality of the State Prosecutor and the request for revision of the Applicant, by ordering the quashing of the Judgment [Ac. no. 101/10], of the District Court, of 16 March 2011, and remanding of the case for reconsideration to the District Court [which, later, upon legal amendments would fall under the jurisdiction of the Court of Appeals].

In the process of the case retrial, the Court of Appeals by Judgment [Ac. no. 2749/13] of 10 April 2017, again partially approved the appeal of B. D. by confirming that the Applicant is the owner of the part of the cadastral parcel of 455 m2 and not 480 m2 as originally decided by the Municipal Court.

On 1 October 2018, the Supreme Court through Judgment [Rev. no. 285/2018] rejected the Applicant’s request for revision as “unfounded”. In this case, as well, Judge I. K. was a part of the trial panel, in the capacity of the presiding judge.

As regards the Referral KI38/19, the Court notes that the essence of the Applicant’s allegations refers to the participation of the same judge [I. K.] in two judicial instances on which occasion the right to fair trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR, has been violated. The Court found that this rerferral meets the admissibility criteria and examined its merits.

In examining the merits, the Court, inter alia, elaborated (i) the general principles of the European Court of Human Rights in relation to the criteria for assessing the impartiality of a court; (ii) the concept of subjective and objective impartiality of the court; (iii) the case law of the European Court of Human Rights in terms of assessing the impartiality of the court, namely the concept of “legitimate doubts” and the fact that they must be “objectively justifiable” in order to ascertain the impartiality of a court ; (iv) the respective case law regarding the participation of a judge in different stages of the same case; and finally, found that (v) the Judgment [Rev. no. 285/2018] of the Supreme Court, of 1 October 2018 was issued in violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR because it was rendered by a composition of the trial panel, in which contrary to the relevant provisions of the LCP and the case law of the ECtHR and the Court has taken part also the judge who, in earlier stages of the same case, had participated as a member of the panel in the District Court in Peja when it was decided on the Applicant’s statement of claim  and thereupon also as the presiding judge of the trial panel of the Supreme Court when it was decided on the Applicant’s request for revision. In such circumstances, the Court found that the “legitimate doubts” about the impartiality of the court, in the circumstances of the present case, were “objectively justifiable”.

The Constitutional Court, in the circumstances of the present case, has treated exclusively and only the allegation for the impartiality of the court due to the participation of Judge I. K. in the same court proceeding in two court instances. This Judgment of the Court is without any prejudice to the final merits for decision-making in this case, once the case is remanded to the Supreme Court for retrial.