Constitutional Court

KI189/21, Applicant: IPKO Telecommunications L.L.C, Constitutional review of Judgment ARJ-UZPV. No. 17/2020, of the Supreme Court of the Republic of Kosovo, of 20 January 2020

KI189/21, Judgment of 20 October 2021, published on 11 November 2021

Keywords: individual referral, unreasoned court decision   

The circumstances of the present case are related to the allegations of the Applicant, in the capacity of provider of electronic communications services, that based on the Law on Electronic Communications and for purposes of public interest, is exempted from the payment of tax on immovable property, an allegation which in addition to the Judgment of the Basic Court, was also rejected by the respective Municipality as well as by the Judgments of the Court of Appeals and the Supreme Court, respectively which the Applicant challenges before the Court.

It is noted from the case file that after being charged with the payment of tax on immovable property for “BTS Antena” by the Municipality of Gjakova, the Applicant has filed a complaint with the Municipal Board for complaints on tax on immovable property, with the reasoning that the imposition of a property tax invoice is contrary to Article 22 (Basis for the Installation of Electronic Communications Infrastructure) of the Law on Electronic Communications, according to which provision the same alleged that he is exempted from payment of property tax. The Municipality of Gjakova rejected the Applicant’s appeal as ungrounded, upholding the property tax invoice. In the proceedings before the regular courts, the Basic Court had initially approved the statement of claim of the Applicant filed against the Municipality of Gjakova, obliging the latter to exempt the Applicant from property tax debt. However, the Court of Appeals and the Supreme Court, respectively, acting upon the appeal of the Municipality of Gjakova and subsequently, upon the request for extraordinary review of the court decision of the Applicant, amended the Judgment of the Basic Court, finally rejecting the Applicant’s allegations, which based on the Law on Electronic Communications, was exempted from property tax.

The Applicant, before the Supreme Court, alleged inter alia, that the Judgment of the Court of Appeals by which the Judgment of the Basic Court was amended did not meet the criteria of a reasoned court decision, because it did not clarify the difference between the property tax from which electronic communications networks and associated facilities are exempted, because their construction is in the public interest in accordance with Law on Electronic Communications, and tax on immovable property from which they are not exempted according to the Law on Immovable Property Tax. The Applicant also referred to the interpretation of the Regulatory Authority of Electronic and Postal Communications according to which, tax on immovable property and property tax referred to, in the two respective Laws have the same meaning, and the operators of electronic communications networks are exempted from the same. Taking into account that according to the Applicant, the Supreme Court only confirmed the decision of the Court of Appeals and did not address nor justified his allegations raised with the request for extraordinary review of the decision, before the Court, the Applicant alleged a violation of his right to a fair and impartial trial guaranteed by the Constitution and the European Convention on Human Rights.

In assessing the Applicant’s allegations, the Court first elaborated on the general principles of its case law and that of the European Court of Human Rights with regard to the right to a reasoned court decision, and then applied the same to the circumstances of the present case. The Court, based on its consolidated case law, and as far as it is relevant to the circumstances of the present case, stated, inter alia, that the failure to provide clear and complete answers regarding the substantive and defining allegations raised by the Applicant and that are related to the distinctive specifics of tax on immovable property and property tax defined by two laws, the Law on Immovable Property Tax and the Law on Electronic Communications, respectively, is not in accordance with the guarantees associated with the right to a reasoned decision, as an integral part of the right to a fair and impartial trial guaranteed by the Constitution and the European Convention on Human Rights.

Consequently and based on the explanations given in the published Judgment, the Court found that the challenged Judgment of the Court was issued in violation of the procedural guarantees set out in 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, remanding the same to the Supreme Court for reconsideration.