Constitutional Court

KI59/21, Applicant: Democratic Party of Kosovo, Branch in Gjakova, request for constitutional review of Judgment Rev. No. 416/2020 of the Supreme Court, of 5 November 2020

KI59/21, Resolution on inadmissibility, of 22 July 2021, published on 12.08.2021

Keywords: right to fair and impartial trial, inadmissible referral, legal person, manifestly ill-founded

From the case file it resulted that the case was related to the conclusion of a lease contract between the Applicant and the Privatization Agency of Kosovo as administrator of socially owned enterprises. As a result of non-payment of contractual obligations by the Applicant, namely the payment of debt for rent for the period 1 June 2012 to 1 November 2015, the Privatization Agency of Kosovo filed a lawsuit with the Basic Court, and in the meantime requested the fulfillment of the statement of claim by requesting that the Applicant also pay interest. The Basic Court had partially approved the statement of claim of the Privatization Agency of Kosovo and obliged the Applicant to pay the debt on behalf of the unpaid rent, based on the lease contract, with the relevant legal interest paid by commercial banks in Kosovo for the means deposited in term over one year, while it rejected the other part as ungrounded. Following the Applicant’s appeal to the Court of Appeals, where among others the Applicant challenged the passive and active legitimacy of the Privatization Agency of Kosovo in this case, the Court of Appeals rejected it as ungrounded. The Applicant filed a revision with the Supreme Court, and the latter rejected the revision against the Judgment of the Court of Appeals, while it modified the Judgment of the Basic Court only as to the date from which the interest should be paid.

The Applicant, raised as a main allegation before the Constitutional Court the violation of the right protected by Articles 31 [Right to Fair and Impartial Trial] in conjunction with Article 6 (Right to a fair trial) of the ECHR.

The Applicant in essence alleged before the Court that the decisions of the regular courts are not sufficiently reasoned, namely the following issues) lack of reasoning made by the regular courts to the Applicant’s allegation, regarding the lack of passive and active legitimacy of the Privatization Agency of Kosovo. to be a party to the proceedings; ii) allegation that the fact that the Applicant is a legal entity has been erroneously established; and iii) the Privatization Agency of Kosovo unduly represented before the regular courts, namely not in the manner provided by the Law on the Privatization Agency of Kosovo.

With regard to the Applicant’s allegations, the Court first elaborated on the principles of its case law and that of the European Court of Human Rights, as regards the doctrine of the fourth instance, and then applied the latter to the circumstances of the present case.

The Court, in relation to these allegations, concluded that the latter are the issues of legality that fall into the category of allegations of “fourth instance”, therefore, manifestly ill-founded allegations.