Constitutional Court

KI92/21, Applicant: Fadil Ponosheci, Constitutional review of the Decision AC-I-19-0146-A001 of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters, of 14 January 2021

KI92/21, Resolution of 21 October 2021, published on 9 November 2021

Keywords: individual referral, court fee, clear or apparent absence of violation, manifestly ill-founded referral

The circumstances of the present case are related to the claim against the Privatization Agency of Kosovo (hereinafter: PAK), as administrator of the socially owned enterprise, SOE Agimi-Gjakovë for the damage compensation in the respective amount. The SOE Agimi-Gjakovë was subject to liquidation procedure by the PAK. Initially, the Liquidation Authority rejects the Applicant’s claim for compensation as ungrounded, and after filing an appeal with the Special Chamber of the Supreme Court of the Republic of Kosovo (hereinafter: the SCSC), the same initially requests that the Applicant pays the court fee and then sends two admonitions to the Applicant with regard to the payment of the court fee with the warning that his appeal would be considered withdrawn if he fails to pay the fee. Since the Applicant had not paid the fee, the SCSC considered the Applicant’s appeal as withdrawn, in which regard the Applicant filed an appeal with the Appellate Panel of the SCSC, and the same rejected the appeal.

The Applicant has two main allegations before the Constitutional Court, for the violation of his constitutional right to a “fair trial” because according to him (i) it is not right to consider his appeal withdrawn only due to the non-payment of the fee; (ii) and that the same had an authorized representative, and therefore the Decision should have been served on him.

The Constitutional Court, referring to its case law and the case law of the European Court of Human Rights (hereinafter: the ECtHR), stated that there are cases which the Court had dealt with in relation to the issue of court fee and it had considered the same as manifestly ill-founded. The Court made a distinction in relation to its case KI80/19, clarifying that in the same case, the Court had found a violation of the right to fair and impartial trial, for the reason that the Applicant in this case had requested an extension of the deadline for payment of court fee and the Appellate Panel without handling this request of the Applicant had issued a Decision by which it considered the appeal as withdrawn. Finally, the Court also dealt with the case of the ECtHR Reuters v. Germany, stating that the request to pay a certain amount to the court cannot be considered a restriction on the right of access to a court, except in the cases with high fees.

In this case, the Court with regard to the allegation of non-payment of the court fee, found that it was not possible to prove the willingness of the Applicant to pay or reject the payment of the court fee, as long as the SCSC had failed to establish a regular communication with the Applicant, due to his change of residence, resulting in allegations with “clear or apparent absence of violation”. With regard to the second allegation, for not notifying the representative, the Court considered that the Applicant had not attached the material evidence as requested by the Court in its submission, wherefrom such an allegation could have been confirmed, finding that such an allegation constitute “unsubstantiated and/or unsupported” allegation.

Consequently and based on the explanations given in the published Resolution, the Court found that taking into account the allegations raised by the Applicant and the facts presented by him, as well as the reasoning of the Appellate Panel, considered that the Applicant’s allegations are manifestly ill-founded on constitutional basis.