Constitutional Court

KI87/20, Applicant: Suva Rechtsabteilung, Constitutional review of Decision [E.Rev.no.68/2019] of the Supreme Court of the Republic of Kosovo, of 27 January 2020

 KI87/20, resolution on inadmissibility, adopted on 26 March 2021, published on 13 April 2021

Keywords: individual referral, reasoning of the court decision, divergence in the case law, manifestly ill-founded referral, inadmissible referral.

The circumstances of the present case relate to an accident that occurred in 2012, which was caused by the insured person of the “Siguria” Company, while the Applicant’s insured person B.I., had suffered material damage. 8 December 2015 the Applicant had filed with the Basic Court a claim for compensation of material damage under his right to subrogation. The claim for compensation of material damage was approved by the Basic Court, and a penalty interest rate of 12% was set starting from 20 September 2013 until the definitive payment. The Court of Appeals by Judgment [Ae.no.130/2018] of 3 September 2019,  partially approved the appeal of the “Siguria” Company by modifying the Judgment [III.Ek.no.561/2015] of the Basic Court, of 5 April 2018, only in the part concerning the amount of penalty interest, thus obliging the “Siguria” Company to pay the penalty interest to the claimant at the annual rate of 8% per annum, after having found that the Basic Court in this point had erroneously applied the substantive law, respectively that Article 26, paragraph 6 of the Law on Compulsory Insurance is not applicable in the cases of claims under the right of subrogation, and that it is Article 382 of the LOR that applies in this case. Consequently, the Applicant filed a revision with the Supreme Court, challenging the Judgment of the Court of Appeals only as regards the part of its decision concerning the penalty interest. In this case, the Supreme Court, by Decision [E.Rev.no.28/2019] of 27 January 2020 dismissed the Applicant’s revision as inadmissible because according to Article 30 paragraph 2 of the LCP, penalty interest as an accessory claim is not taken into consideration if it does not constitute the main claim, which in the present case is the claim for compensation on the basis of the right of subrogation.

The Applicant challenges the abovementioned findings of the Supreme Court, by alleging (i) a violation of his right to a fair and impartial trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR. The Court recalls that regarding his allegation for a violation of Article 31 of the Constitution, in conjunction with Article 6 of the ECHR, the Applicant alleges: (i) non-reasoning of the court decision; (ii) denial of his right of access to court; and (iii) divergence in the case law as a result of contradictory decisions of the Supreme Court. And (ii) violation of his right to property, guaranteed by Article 46 of the Constitution, in conjunction with Article 1 of Protocol No.1 of the ECHR.

Having assessed the Applicant’s allegations, the Court, by also applying the standards of the case law of the European Court of Human Rights, found that the Referral is inadmissible because the allegations for a violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR and Article 46 of the Constitution are manifestly ill-founded on constitutional basis as provided for by Rule 39 (2) of the Rules of Procedure.