Constitutional Court

KI80/19, Applicant: Radomir Dimitrijević, Constitutional review of Decision  AC-I-18-0547-A0001 of the Appellate Panel of the Special Chamber of the Supreme Court on the Privatization Agency of Kosovo Related Matters, of 21 February 2019 

KI80/19, Judgment adopted on 10 November 2020, published on 9 December 2020 2020 

Key words: individual referral, civil procedure, right to a fair trial, right to property, admissible referral, violation of Article 31 of the Constitution

The Applicant challenged before the Constitutional Court the constitutionality of Decision AC-I-18-0547-A0001 of the Appellate Panel, of 21 February 2019, which allegedly violates the Applicant’s rights guaranteed by Article 31 [Right to Fair and Impartial Trial], Article 54 [Judicial Protection of Rights] and Article 102 [General Principles of the Judicial System] of the Constitution of the Republic of Kosovo, Article 6 (Right to a fair trial) and Article 1 of Protocol No. 1 of the European Convention on Human Rights. The Applicant alleged that the Appellate Panel violated his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution, Article 6 and Article 1 of Protocol No. 1 of the Convention because: “The Appellate Panel of the Special Chamber of the Supreme Court of Kosovo has taken an early decision by which it considers the Applicant’s appeal withdrawn, because prior to this the APSCSC had to decide on the Applicant’s request by which he requested an additional deadline or postponement of payment of the  court fee upon appeal”.

The Court initially assessed whether the Referral fulfilled the admissibility requirements for an examination of the merits of the Referral, as established in the Constitution and further specified in the Law on the Constitutional Court and in the Rules of Procedure of the Court.  In respect of the fulfillment of the above mentioned criteria deriving from the right of access to court, the Court noted that in the circumstances of the present case we were dealing with a “dispute” and a “civil right” between the Applicant and the PAK, namely with the realization of the claimed salaries in the amount of 16,420.00 euros for the period June 1999-2007, as well as the payment of 20%, from the privatization funds of the enterprise SOE Fabrika for the production of pipes and steel profiles in Ferizaj.

Referring to the present case, the Court found that the Applicant, faced with such factual and legal circumstances, from 29 November 2018 was awaiting the review of his request and the provision of a reasoned response by the Appellate Panel.  The latter, however, without taking into account his request of 29 November 2018, considered his appeal as withdrawn.  Faced with such a circumstance, the Appellate Panel was obliged to review the Applicant’s request, in accordance with paragraph 5 of Article 8 of Administrative Instruction No. 01/2017 on unification of court taxes, before considering the appeal of the Applicant as withdrawn. Based on the above mentioned considerations, the Court found that the non-review of the Applicant’s request by the Appellate Panel constitutes an insurmountable procedural flaw which is contrary to the right of access to justice, guaranteed to individuals by Article 31 of the Constitution and Article 6.1 of the ECHR.

In conclusion, the Court found that the challenged Decision [AC-I-0547-A0001] of the Appellate Panel, of 21 February 2019, whereby the Applicant’s appeal was considered as withdrawn, did not respect the Applicant’s right of “access to court”. Therefore, the Court found a violation of Article 31 [Right to a Fair and Impartial Trial] of the Constitution and Article 6.1 [Right to a fair trial] of the ECHR.