Constitutional Court

KI08/20, Applicant: Naser Husaj, Constitutional review of Judgment Rev. No. 465/2019 of the Supreme Court of 11 December 2019 

KI 08/20, Resolution adopted on 25 November 2020, published on 16 December 2020

Keywords: individual referral, right to fair and impartial trial, protection of property, impartial court, inadmissible referral

The circumstances of the present case relate to a court dispute regarding a Contract of 2006 in the amount of 30,000 euro concluded between the Applicant and S.J., regarding some disputed parcels. The Applicant alleged, inter alia, that he has fulfilled the biggest part of the Contract because he paid 20,000 euro out of this amount, moreover, he also claimed that he acquired the property right, as a bona fide possessor with passage of necessary time based on the relevant provisions of the Law on Basic Property Relations of 30 January 1980. Meanwhile, and while the Applicant’s appeal was pending before the Court of Appeals, the Applicant filed a criminal report against one of the judges participating in the panel of the Court of Appeals. Considering that the latter rejected his allegations about the disputed parcels as ungrounded and confirmed the findings of the Basic Court, the Applicant, by a revision in the Supreme Court, challenged the participation of Judge Q.A. in the relevant panel of the Court of Appeals. The Supreme Court, by Judgment [Rev. No. 335/2015] of 14 December 2015, reviewed the Applicant’s allegations raised in the revision by rejecting them, but did not address the allegations related to the impartiality of the Court of Appeals due to the participation of Judge Q.A. in the relevant panel. Consequently, the Applicant addressed the Constitutional Court, alleging a violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, due to the lack of a reasoned court decision regarding the bias of the Court of Appeals, as a result of the participation of Judge Q.A. at the relevant panel. The Constitutional Court, by Judgment KI22/16, declared the abovementioned Judgment of the Supreme Court in violation of Articles 31 of the Constitution and 6 of the European Convention on Human Rights, due to the lack of a reasoned court decision, only and specifically, regarding the allegation of bias of the Court of Appeals, and remanded the case to the Supreme Court. In retrial, the Supreme Court by Judgment [Rev .No. 465/2019] of 11 December 2019, rejected again the Applicant’s revision as ungrounded, but this time, in accordance with the findings of the Judgment of the Court in case KI22/16, also addressed and reasoned the allegations of the Applicant regarding the bias of the relevant Panel in the Court of Appeals, due to the participation of the judge Q.A.

The Applicant challenged this Judgment of the Supreme Court again before the Court, alleging a violation of Articles 31 [Right to Fair and Impartial Trial] and 46 [Protection of Property] of the Constitution and Article 6 of the European Convention on Human Rights, in essence, claiming that the Judgment of the Court in case KI22/16 was not implemented by the Supreme Court and that the Judgment of the latter continued to be unreasoned. The Court addressed these allegations of the Applicant, applying the case law of the European Court of Human Rights, on the basis of which the Court, based on Article 53 [Interpretation of Human Rights Provisions] of the Constitution, is obliged to interpret the fundamental rights and freedoms guaranteed by the Constitution.

Regarding the Applicant’s allegations in relation to Article 31 of the Constitution, the Court, after providing the necessary clarifications, stated that the reasoning of the Supreme Court in the challenged Judgment [Rev. No. 465/2019] of 11 December 2019 is in accordance with the claims and findings of the Court in case KI22/16, and consequently, the latter was correctly applied. Therefore, the Applicant’s allegations of lack of a reasoned court decision and non-enforcement of the Court Judgment in case KI22/16, qualified as allegations that reflect “obvious or clear absence of violation”, declaring them inadmissible as manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 39 of the Rules of Procedure.

Whereas, regarding the Applicant’s allegations regarding other aspects of Article 31 of the Constitution and Article 46 of the Constitution, the Court found that these allegations fall into the category of “unsubstantiated or unreasoned” allegations In the context of this category of allegations, the Court, based on Article 48 of the Law and paragraphs (1) (d) and (2) of Rule 39 of the Rules of Procedure and its case law, recalled its already consolidated position that (i) the parties have an obligation to accurately clarify and adequately present the facts and allegations; and also (ii) to prove and sufficiently substantiate their allegations of violation of constitutional rights or provisions. Consequently, these allegations were also declared inadmissible as manifestly ill-founded on constitutional basis, as stipulated in paragraph (2) of Rule 39 of the Rules of Procedure.

Finally, the Referral was declared inadmissible as manifestly ill-founded on constitutional basis as provided by Article 113.7 of the Constitution, Article 47 of the Law and Rule 39 (2) of the Rules of Procedure.