Constitutional Court

KI19/21, Applicant: Sadik Pllana, Constitutional review of Judgment Rev. No. 239/2019 of 26 November 2020 of the Supreme Court of Kosovo

KI19/21 Judgment of 18 July 2022, published on 17 August 2022

Keywords: individual referral, trial within reasonable time, effects of judgment, statute of limitations, admissible referral

The circumstances of the present case are related to a lawsuit for compensation of damage, which the Applicant had filed against the Ministry of Education, Science and Technology in 2000, after the bodily injuries he had suffered at the workplace at the Primary School facility “Enver Hadri” in Smrekonice of Vushtrri. Since the initial lawsuit, in relation to this case, two different court proceedings have taken place over the course of twenty years. More precisely, the first lawsuit of the Applicant was concluded by the Decision [Rev. no. 97/2004] of 25 January 2005 of the Supreme Court and by which it was established that the Applicant’s lawsuit is inadmissible because the Ministry of Education, Science and Technology lacks passive procedural legitimacy. Whereas, the second Applicant’s lawsuit, filed in 2006, with the same subject of dispute but this time against the Primary School “Enver Hadri”, after three decisions of the Municipal Court, respectively Basic Court, and three decisions of the Court of Appeals, had finally ended by the Judgment of the Supreme Court of 2020 and according to which, among other things, the Applicant’s lawsuit is out of time due to the statute of limitation. The Applicant before the Court challenged the findings of the Supreme Court, claiming, among other things, that (i) the regular courts had arbitrarily applied and interpreted the law regarding the statute of limitation of his lawsuit; and (ii) his case was not adjudicated within a reasonable time in violation of the guarantees of the right to a fair and impartial trial established in Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 (Right to a fair trial) of the European Convention on Human Rights.

Regarding the Applicant’s lawsuit for the manifestly erroneous or arbitrary interpretation of the law by the regular courts regarding the statute of limitations, the Court concluded that there has been no violation of the right to a fair trial guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights, because based on the reasoning given by the regular courts, the Applicant did not file his statement of claim in accordance with the deadlines set by the relevant provisions of the Law on Obligations of 1978. However, the Court found that the prolongation of the court proceedings in the circumstances of the present case had resulted in a violation of the above-mentioned articles.

More specifically, in assessing the Applicant’s allegations that his case was not decided within a reasonable time, the Court first elaborated on the general principles of its case law and of the European Court of Human Rights, and then applied the latter in the circumstances of the present case. The Court emphasized that according to these principles, the calculation of the time extension of the procedures begins at the moment when the competent court is set in motion by the request of the parties to establish a right or legitimate interest claimed and continues until the issuance and implementation of a final court decision by a competent court last instance. Whereas, the reasonableness of the length of the proceedings  must be assessed in the light of the circumstances of the case, based on: (i) the complexity of the case; (ii) the conduct of the parties to the proceedings; (iii) the conduct of the competent court or other public authorities; as well as (iv) the importance of what is at stake for the applicant in the dispute.

Regarding the period that should be taken into account in the present case, the Court clarified that it cannot take into account the period of time related to the first lawsuit since it was initiated by the Applicant on 2 November 2000 and the procedures related to it ended on 25 January 2005, namely, before the Constitution of the Republic of Kosovo entered into force on 15 June 2008 and that it cannot assess the constitutionality of legal acts before the Constitution entered into force. Consequently, the Court assessed that the period that should be taken into account in relation to the Applicant’s lawsuit for deciding his case within a reasonable period, is calculated from the date of filing the second lawsuit, namely on 18 April 2006, until the last decision related to the Applicant’s lawsuit, namely the Judgment [Rev. no. 239/2019] of 26 November 2020 of the Supreme Court. Meanwhile, in the application of the criteria regarding the reasonableness of the prolongation of the proceedings, the Court initially found that the present case (i) was not complicated because the regular courts merely  applied and interpreted the provisions of the applicable law regarding the deadline and statute of limitation of the respective statement of claim; (ii) the Applicant did not contribute to the prolongation of the proceedings by his actions and only followed the procedural steps to exercise his right to compensation for the damage he suffered at the workplace; whereas (iii) it took more than fourteen years for the regular courts to establish by a final decision whether the Applicant’s lawsuit is statute-barred or not. Taking into account the cumulative application of the aforementioned criteria, the Court found that, under the circumstances of the relevant case, the length of the proceedings cannot be considered reasonable and that, as a result, there has been a violation of paragraph 2 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of the European Convention on Human Rights, regarding the right to a fair trial within a reasonable time.

Finally, taking into account the Court’s finding that the challenged Judgment of the Supreme Court was rendered only in violation of the right to a court decision within a reasonable time, the Court did not annul the latter. The Court also clarified that it does not have the competence  to grant compensation, but based on its case law, the Applicant can use the legal remedies available under the legislation in force, for the further exercise of his rights, including the right to seek compensation for material and non-material damage as a result of the violation of the right and impartially within a reasonable period guaranteed by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights.