Constitutional Court

KI24/20, Applicant: “PAMEX SH.P.K.”, Constitutional Review of Judgment Ae.nr.179/2017 of the Court of Appeals of Kosovo, of 11 November 2019. 

KI24/209, Judgment of 3 February 2021, published on 24 February 2021

Key words: individual referral, erroneous bank transfer, Law on Payment System, unreasonable decision

The circumstances of the present case are related to a transaction of 21 June 2013, on behalf of the Applicant to a Chinese company, which was carried out by the Banka për Biznes in Prishtina. However, the latter had erroneously performed the transaction in euro and not in dollars, thus resulting in an additional payment of 17,436.85 euro, to the detriment of the Applicant, as a result of the difference in the exchange rate. Subsequently, based on the case file, it follows that the Applicant and the Bank had reached an agreement according to which (i) the part of the transfer performed erroneously would remain with the Chinese company, of which the Applicant would order additional goods; whereas (ii) the Bank would enable the Applicant an Overdraft Contract through which the Applicant would compensate the Bank for the disputed amount within a specified period.

At the beginning of 2015, the Applicant addressed the regular courts, not only requesting the return of the disputed amount but also the compensation of losses occurred a result of the actions of the Bank in question. The Basic Court in Prishtina rejected the claim of the Applicant as ungrounded, as it clarified that the disputable issues arising from the error that the Bank had made through the transaction of 21 June 2013, had been resolved upon the will of the parties through (i) a statement signed by the Applicant on 30 July 2013; and (ii) the Overdraft Contract signed on 31 July 2013. The Applicant challenged the findings of the Basic Court at the Court of Appeals, inter alia, stating the fact that the witness proposed by the Applicant was not heard in the Basic Court and requesting to assign a super expert assessment. Furthermore, the Applicant also alleged violation of the provisions of the Law on Payment System and more precisely Articles 33, 34, 41 and 53 thereof. The Court of Appeals, by the challenged Judgment had approved the findings of the Basic Court.

Before the Court, the Applicant alleged that the Judgment [Ae.nr.179/2017] the Court of Appeal, of 11 November 2019, was issued in violation of the Applicant’s rights and fundamental freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, due to lack of a reasoned judicial decision. The Applicant stated before the Court, inter alia, that the Court of Appeals had failed to substantiate his allegations, in particular as regards (i) his request for the hearing of Witness A.B.; (ii) his request regarding a super expert assessment; and (iii) violations of Articles 33, 34, 41 and 53 of the Law on Payment System.

In addressing the allegations of the Applicant, the Court initially , based on the case law of the European Court of Human Rights, inter alia, emphasized the fact that the courts are obliged to reason the parties’ allegations which are substantial or that can be decisive for the merits of a case. In this context, the Court also clarified that despite the fact that when courts with appellate jurisdiction uphold the decisions of lower courts, they are not obliged to reason every argument, they are nevertheless obliged to show sufficient consideration in reviewing the decision of the lower instance court. Moreover, in assessing a decision of a lower instance court, the higher instance court is also obliged to assess the allegations of the appeal of an applicant, and not just to assess whether the lower instance court has rightly assessed  the relevant appeal claim before it.

In applying these standards in the present case, the Court found that when issuing the Judgment [Ae.nr.179/2017] of 11 November 2019, the Court of Appeals, in addition to the failure to reason the Applicant’s allegations regarding super expert assessment and failure to hear certain witnesses, in its reasoning it did not include a single sentence regarding the allegations of the Applicant for violation of the provisions of the Law on Payment System, as a substantial allegation of the Applicant. The above mentioned law, in its Article 53, stipulates, among other things, that no agreement in writing between a customer and a payment institution may contain any provision that constitutes a waiver of any right conferred or cause of action created by this Law. Based on the assessment of the Court, silence of the Court of Appeals regarding such substantial and decisive allegations of the Applicants does not meet the standards of a reasoned court decision, as guaranteed by the Constitution and the European Convention on Human Rights.

As a result, the Court found that the above mentioned Judgment of the Court of Appeals is incompatible with the guarantees embodied in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, due to the lack of a reasoned judgment, and consequently must be declared invalid, and remanded for retrial to the Court of Appeals.