Notification on the published Judgment KI 156/20

The Constitutional Court of the Republic of Kosovo today published the Judgment in Case KI 156/20, submitted by Raiffeisen Bank Kosovo J.S.C., whereby was requested the constitutional review of Decision [Ac. No. 5514/18] of the Court of Appeals of Kosovo of 13 May 2019 and Decision [Cml. No. 8/2019] of the Supreme Court of Kosovo, of 17 June 2020.

The circumstances of the present case are related to two enforcement proceedings conducted in relation to the non-payment of the debt arising from the Loan Agreements, concluded between the Applicant, in the capacity of creditor and NTP Unio Commerce Company, in the capacity of Debtor.

The first procedure, which was based on Law No. 03/L-008 on Enforcement Procedure (now repealed), was initiated by the Applicant on 29 March 2013, in which case he submitted two (2) proposals for enforcement of mortgages, namely (i) proposal for enforcement in the Basic Court in Ferizaj, Branch in Kaçanik; and (ii) the proposal for enforcement in the Basic Court in Ferizaj, namely in the territories where the mortgages were located. As a result of challenging the expertise provided in the Basic Court in Ferizaj by the Debtor and the request of the latter for the appointment of super-expertise, this court decided to prepare three (3) experts in the field of finance from the Faculty of Economics of the University of Prishtina. The relevant super-expertise was submitted on 30 October 2015. However, the Applicant requested the withdrawal of his enforcement proposals against the Debtor, and consequently, the enforcement proceedings in the Basic Court in Ferizaj, the Branch in Kaçanik and the Basic Court in Ferizaj were terminated on 25 November 2014 and 17 December 2015, respectively.

On 6 January 2016, the Applicant initiated a new enforcement procedure, which was based on Law No. 04/L-139 on Enforcement Procedure, in which procedure filed the proposal for enforcement of the debt to the Debtor with the Private Enforcement Agent F.H., namely the enforcement of mortgages for the immovable properties registered in the Municipality of Ferizaj, which proposal in its content included the same claims as those specified in the previous enforcement proposal, initiated on 29 March 2013 in the Basic Court in Ferizaj and completed on 17 December 2015, as a result of the request for withdrawal. The Private Enforcement Agent allowed the enforcement of the debt, against which the Debtor filed an objection with the Basic Court in Ferizaj. As a result of the Debtor’s appeal against the Private Enforcement Agent’s Conclusion, inter alia, (i) to appoint Deloitte Company to calculate the debt; and (ii) his request submitted to the Basic Court in Ferizaj to specify the debt, based on super-expertise of 30 October 2015 of the Faculty of Economics, the Basic Court decided to approve the Debtor’s objection as partly grounded, upholding the Order for enforcement, but in the amount of the debt calculated through the expertise of the Faculty of Economics. The Applicant challenged this decision in the Court of Appeals, and the latter remanded the case for retrial, stating, inter alia, that the Basic Court in Ferizaj was obliged to invite experts to its review session in order to enable the parties to ask questions regarding the expertise. In the retrial in the Basic Court in Ferizaj, during the period 27 November 2017 until the issuance of its Decision, eight (8) public hearings were held, in some of which the group of experts appointed by the Faculty of Economics also participated. In the last hearing held in this court, the Applicant for the first time challenged the territorial jurisdiction of the Basic Court in Ferizaj, claiming that competent to decide in this enforcement procedure is the Basic Court in Ferizaj, Branch in Kaçanik, namely the court where the seat of the Debtor is located. The Basic Court in Ferizaj by the Decision, among other things, decided to uphold the Enforcement Order, with the calculated amount of debt through the expertise of the Faculty of Economics. This decision was upheld by the Court of Appeals on 13 May 2019. Therefore, the Applicant submitted a proposal to the State Prosecutor’s Office to file the request for protection of legality by challenging the issue of territorial jurisdiction and the appointment of three (3) experts of the Faculty of Economics for calculation of debt. The State Prosecutor submitted to the Supreme Court the request for protection of legality regarding the claim related to the territorial jurisdiction of the court, assessing that “the territorial jurisdiction belonged to the Basic Court in Ferizaj, Branch in Kaçanik and not the Basic Court in Ferizaj”. On 17 June 2020, the Supreme Court by Decision rejected as ungrounded the request of the State Prosecutor for protection of legality filed against the Decision of the Basic Court and the Decision of the Court of Appeals and confirmed that the Basic Court in Ferizaj, was competent to decide on this enforcement procedure.

These findings of the regular courts are challenged by the Applicant before the Court, alleging a violation of his right 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, with emphasis on: (i) violation of the principle of a court established by law; (ii) violation of the right to legal certainty and observance of final court decisions, and (iii) violation of the impartiality of the court, as a result of the impartiality of the experts of the Faculty of Economics.

First, with regard to the Applicant’s allegation related to the court established by law, as a result of the lack of territorial jurisdiction of the Basic Court in Ferizaj, the Court elaborated in detail on the principles and criteria established through the case law of the European Court of Human Rights and the case law of the Court, according to which, a court “established by law” means not only the legal basis for the very existence of the “court” but also the observance by the court of special rules according to which the latter functions. Beyond these principles, the Court also referred to the applicable law, the importance of which is emphasized by the above-mentioned case law, namely Article 22 of the Law on Contested Procedure, which refers to the procedure when a court may be declared incompetent from a territorial point of view and interpretation. of the same by the Court of Appeals and the Supreme Court, which stated that in the enforcement procedure the courts may be declared incompetent from a territorial point of view in two circumstances, namely in this enforcement procedure (i) by means of a response to objection; and (ii) ex officio if there is exclusive jurisdiction of any other court. In the circumstances of the present case, the issue of territorial jurisdiction was not raised through the response to the objection, and according to the interpretation of the regular courts, the conditions were not met for the courts to act ex officio. Therefore, the Court, applying the criteria and principles elaborated regarding the court established by law in the circumstances of the case, and in particular based on the interpretation provided by the challenged Decision of the Supreme Court, found that the Basic Court in Ferizaj is “a court of established by law” as defined in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights.

Secondly, with regard to the Applicant’s allegation related to the violation of the principle of legal certainty, as a result of non-compliance with the final decision, which the Applicant considers the last decision in the first enforcement procedure, in which the Applicant had withdrawn his proposal for enforcement, the Court elaborated on the basic principles of the case law of the European Court of Human Rights and that of the Court, regarding the principle of the finality of final decisions. However, the Court found that the same principles were not applicable in the circumstances of the present case, as that procedure ended as a result of the withdrawal of the enforcement proposal by the Applicant himself.

Thirdly, with regard to the Applicant’s allegation of lack of impartiality of the court, as a result of the appointment of experts in the enforcement proceedings, the Court also elaborated and then applied the basic principles and criteria established through the case law of the European Court of Human Rights and the case law of the Court, according to which the right to a fair trial guaranteed by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights does not necessarily require that an expert heard by a “court” meets the same requirements for independence and impartiality as the court itself, however, the lack of impartiality by a court-appointed expert may, in certain circumstances, result in a violation of the principle of equality of arms, a principle inherent in the context of a fair and impartial trial. Based on these principles, regarding the allegation of (i) lack of impartiality of the experts, the Court found that the Applicant does not sufficiently support the “legitimate suspicions” of their lack of impartiality and even though they may be “objectively justifiable” in the circumstances of the present case; and (ii) during the proceedings before the Basic Court, in particular in the retrial proceedings, the Applicant had the opportunity to effectively participate and challenge the report prepared by these experts; Consequently, the Court finds that the Applicant’s request of lack of impartiality of experts does not result in a violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights.

Finally, based on the circumstances of the present case and based on the explanations given in the published Judgment, the Court unanimously declared the Referral admissible and by a majority of votes concluded that Decision [CLM. No. 8/2019] of 17 June 2020 of the Supreme Court of Kosovo and Decision [Ac. No. 5514/18] of 13 May 2019 of the Court of Appeals of Kosovo, are in compliance with Article 31 of the Constitution of the Republic of Kosovo in conjunction with Article 6 of the European Convention on Human Rights.

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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