Constitutional Court

KI84/21, Applicant: Kosovo Telecom J.S.C., Constitutional review of Decision CML. No. 12/20 of the Supreme Court of Kosovo, of 20 January 2021

KI84/21, Judgment of 24 November 2021, published on 17 December 2021

Keywords: individual referral, principle of “equality of arms”, enforcement procedure, “full jurisdiction” 

The circumstances of the present case relate to the Support Services Agreement of the Virtual Mobile Network Operator (Agreement), concluded between the Applicant, namely Kosovo Telecom and “Dardafon” Company, regarding the provision of mobile telephony services. The abovementioned agreement resulted in a dispute between the parties and as a result, the “Dardafon” company initiated three (3) different proceedings, as follows: (i) the proceedings before the Arbitration Tribunal at the International Chamber of Commerce (ICC) regarding the settlement of the dispute from the above-mentioned Agreement, which resulted in the issuance of a Decision by which, among other things, the Applicant was obliged to pay a certain amount of money to the company “Dardafon” due to non-compliance with the Agreement; (ii) the proceedings concerning the recognition of the ICC Arbitral Tribunal Decision, which resulted in the recognition of this Decision by the Basic Court, which was also confirmed by the Court of Appeals and consequently became final; and (iii) the proceedings relating to the enforcement of the Decision of the ICC Arbitral Tribunal.

The subject matter of the case before the Court relates only to the third procedure, namely the procedure related to the enforcement of the Decision of the ICC Arbitration Tribunal. The dispute in the enforcement procedure started after the Applicant filed an objection with the Basic Court in Prishtina against the Enforcement Order issued by the Private Enforcement Agent at the request of the company “Dardafon”.

Between the parties in the proceedings conducted before the Basic Court was disputed, among others, the total amount of the main debt, namely the amount which would be subject to the enforcement. Therefore, the Basic Court rendered a Conclusion by which it obliged the company “Dardafon”, within three (3) days, to specify the proposal for enforcement regarding the total amount of the main debt. In response to the abovementioned Conclusion, the company “Dardafon” submitted to the Basic Court the completion of the proposal for enforcement and an own expertise. These documents were submitted by the Court to the Applicant, who received them on 6 July 2020, while his response to the Court was submitted the next day, namely, on 7 July.

However, on 6 July 2020, the Basic Court rendered its decision, by which rejected as ungrounded the Applicant’s objection regarding the amount of 24,684,003.15 euro, while it had partially approved as grounded the objection regarding the amount of 315,99.85 euro. Against this Decision, the Applicant filed an appeal with the Court of Appeals alleging that the Basic Court, among other things, did not take into account his submission at all, because the Decision of the Basic Court was rendered one day earlier, on 6 July 2020, without waiting and without reviewing the Applicant’s response to the specification of the enforcement proposal of the company “Dardafon” and other documents, including expertise, in violation of his rights guaranteed by law and in violation of the principle of “equality of arms” guaranteed by the Constitution. The Court of Appeals rejected as ungrounded the Applicant’s appeal, not addressing the allegation regarding the inability of the Applicant to declare the specification of the enforcement proposal of the company “Dardafon”. The State Prosecutor’s Office filed a request for protection of legality with the Supreme Court. The latter also rejected the request as ungrounded.

The Applicant before the Constitutional Court, inter alia, alleged that the decisions of the regular courts in the enforcement proceedings were rendered in violation of the principle of “equality of arms” guaranteed by 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 because (i) the Basic Court denied the Applicant the right to present his opinion regarding the specification of the debt of the company “Dardafon” and additional documents and evidence, including expertise, because the Decision of the Basic Court was rendered on the day when the Applicant received the relevant documents and the court did not wait even one day for the Applicant’s response; and (ii) the Court of Appeals did not address at all the Applicant’s allegation of a violation of the principle of “equality of arms”.

In examining the Applicant’s allegations, the Court first elaborated on the principles of its case law and the European Court of Human Rights regarding the principle of “equality of arms” and then applied them to the circumstances of the present case. The Court, inter alia, recalled that, according to the principle of “equality of arms”, it is inadmissible for a party to the proceedings to submit remarks or comments before the regular courts, which aim at influencing the decision-making of the court, without the knowledge of the other party or without giving the other party the opportunity to respond to them. The Court also noted that, the procedural flaws in the first instance could be remedied through an appeal, provided that the institution deciding on the respective appeal has “full jurisdiction” for the case before it.

The Court, after analyzing the case file and as explained in detail in the published Judgment, found that: (i) in violation of the principle of “equality of arms”, the Basic Court denied the Applicant the right to state his opinion on the submission of the company “Dardafon” regarding the specification of the proposal for enforcement and additional documents and evidence, since the Decision of the Basic Court was rendered on the same date when the Applicant received the documents and without waiting for his response; and (ii) the Supreme Court, and in particular the Court of Appeals, which although had “full jurisdiction” to decide the case, including the competence to remedy the shortcomings of the proceedings before the Basic Court, failed to address the latter, and consequently not remedying the violation of the principle of “equality of arms”.

Therefore and based on the explanations given in the published Judgment, the Court found that the challenged Decision of the Supreme Court and the Decision of the Court of Appeals were rendered contrary to the procedural guarantees established in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, remanding it to the Court of Appeals, given that the latter, as explained in the Judgment, has “full jurisdiction” to address the procedural shortcomings which resulted in challenging the Decision of the Basic Court.