Notification on the published Judgment KI 182/20

The Constitutional Court of the Republic of Kosovo today published the Judgment in Case KI 182/20, submitted by Sedat Kovaçi, Servet Ergin, Ilirjana Kovaçi and Sabrije Zhubi, whereby was requested the constitutional review of Decision [Rev. 54/2020] of the Supreme Court of Kosovo, of 6 July 2020.

The circumstances of the present case are related to the contested procedure initiated by the Applicants, initially in the Municipal Court in Prizren, against the Municipality of Prizren, by which they requested to establish that they are co-owners of a property. All the Applicants, with individual power of attorney, authorized the lawyer S.R., from Prizren, to represent them in the contested procedure, authorizing the latter also that he could transfer the authorization to another lawyer. The Municipal Court rendered Judgment whereby approving the Applicants’ statement of claim, which was subsequently upheld by the District Court in Prizren. However, the case was remanded for retrial following the decision of the Supreme Court, issued upon the revision of the Municipality of Prizren. In the repeated procedure, the Basic Court in Prizren rejected the statement of claim of the Applicants, which was also upheld by the Court of Appeals. Following the issuance of the Judgment of the Court of Appeals, the lawyer S.R., on the basis of the power of attorney clause, transferred the right of the representation of the Applicants to the lawyer E.G. As a new representative of the Applicants, the lawyer E.G. filed a request for revision with the Supreme Court. The latter, rejected the revision, stating that in the case file there is no power of attorney by which the Applicants authorized lawyer E.G. to represent them before the Supreme Court.

The Applicants before the Court alleged that the Decision of the Supreme Court was rendered in violation of their rights and freedoms guaranteed by Articles 21 [General Principles], 23 [Human Dignity], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 54 [Judicial Protection of Rights] of the Constitution of the Republic of Kosovo. In this context, they alleged that by rejecting their revision as inadmissible, even assuming that there was no authorization in the case file for lawyer E.G., the Supreme Court acted contrary to the procedural guarantees of access to court set forth in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights. Furthermore, the Applicants stated that based on paragraph 2 of Article 93 of Law No. 03/L-006 on Contested Procedure, the Court may allow the actions in the procedure for the party to be temporarily performed by the person who has not submitted the power of attorney, but at the same time will order him to submit the power of attorney or the approval of the party for performed procedural actions. Despite the constitutional and legal guarantees, the Supreme Court simply dismissed their revision, without requiring the Applicants to clarify/submit the authorization within a certain deadline and without giving them the opportunity to declare themselves regarding the legal status of the lawyer E.G., who filed request for revision on their behalf.

Examining the allegations of the Applicants of violation of their rights, in the context of the right of “access to court”, as one of the main principles of a fair trial guaranteed by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights, the Court first elaborated and then applied the principles of its case law and the case law of the European Court of Human Rights. According to these principles, the right of “access to court” does not only mean the right to initiate proceedings before a court, but, in order for the right of access to the court to be effective, the individual must also have “clear and real” opportunity to challenge the decision that violates his/her rights and that his/her case be treated on merits.

After assessing all the circumstances in this case, the Court stated that the Applicants’ allegations of violation of the right of “access to court” were grounded, because the Supreme Court, based on constitutional guarantees but also on the Law on Contested Procedure, before dismissing the revision in a completely formal way, should have given the Applicants the opportunity to clarify the issue of their representation by lawyer E.G., or to have given the opportunity to lawyer E.G. to bring within a certain deadline the evidence for the representation of the Applicants.

Finally, based on the explanations given in the published Judgment, the Court found that the Judgment of the Supreme Court was 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 and therefore, declared the latter invalid, remanding it for retrial to the Supreme Court.

Note:

This press release was prepared by the Secretariat of the Court for informational purposes only. The full text of the decision has been served to the parties involved in the case, is published on the Court’s website and will be published on the Official Gazette within set deadlines.
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