Constitutional Court

KI111/19, Applicant: Insurance Company “SUVA Rechstabteillung”, Constitutional review of the Judgment E. Rev. no.1/2019 of the Supreme Court, of 27 February 2019

KI111/19, Judgment adopted on 28 April 2021, published on 16 June 2021

Keywords: individual referral, right to a fair and impartial trial, consistency of the case law, legal certainty, right to a reasoned decision

In the circumstances of the present case, the Applicant had filed a claim with the Basic Court in Prishtina-Department for Commercial Matters regarding the regression of the costs of medical treatment and disability compensation of the injured party S.B. suffered in the traffic accident of 1 May 2013. The Applicant had requested that the respondent – the Insurance Company “Elsig” be obliged to pay the general amount of funds in euros along with the annual interest rate of 12%. The lower instance courts upheld the regression amount and the interest at the rate of 12% claimed by the Applicant, however, after the revision of the respondent, the Supreme Court decided that the rate of interest to be granted to the Applicant is 8% and not at the rate of 12% as previously granted by the lower instance courts. The Applicant submitted a Referral to the Constitutional Court alleging, inter alia, a violation of Article 31 of the Constitution of the Republic of Kosovo (hereinafter: the Constitution) in conjunction with Article 6 (1) of the European Convention on Human Rights (hereinafter: the ECHR), regarding the legal certainty and the right to a reasoned decision.

The Court assessed the Applicant’s allegations regarding legal certainty and the right to a reasoned decision as one of the guarantees established in Article 31 of the Constitution in conjunction with Article 6 (1) of the ECHR, by basing this assessment upon the case law of the European Court of Human Rights (hereinafter: the ECHR). The Court elaborated on the general principles deriving from the ECtHR and its case law regarding judicial consistency and the right to a reasoned decision.

In relation to the allegation for a violation of the principle of legal certainty, the Court found: (i) that in the present case the existence of “deep and long-standing” differences in respect of the consistency of the case law of the Supreme Court has not been proved; (ii) that there is a mechanism that provides for a fair administration of justice and review of changes in the case law; (iii) The Supreme Court on 1 December 2020 has issued a “Legal Opinion on Interest related to the Applicable Law, Interest Rate and Calculation Period” based on Article 14. 2.10 of the Law on Courts (iv) that the possibility of conflicting decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction; (v) the question as to which law is to be applied in the circumstances of the present case is the prerogative and duty of the Supreme Court; and, that (v) the role of the Supreme Court is precisely to resolve such conflicts.

In relation to the allegation for violation of the right to a reasoned decision, the Court has assessed that the Supreme Court (i) has provided the legal basis and explained why in the Applicant’s case is applied the penalty interest at the rate of 8%; (ii) the challenged judgment of the Supreme Court contains a logical connection between the legal basis, the reasoning and the conclusions drawn; (iii) as a logical consequence between the legal basis, the reasoning and the conclusions it has resulted that the challenged judgment of the Supreme Court meets the criteria of a reasoned decision; and, that (iv) whether the Applicant is recognized the right to 12% or 8% of the penalty interest is a matter of application and interpretation of the law and of the discretion of the Supreme Court, and as such, in itself, they do not come into contradiction with the right to a fair and impartial trial.

Finally, the Court found that, in the circumstances of the present case, there has been no violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (1) (Right to a fair trial) of the ECHR.