Constitutional Court

KI230/21, Applicant: Global Trade-af, L.L.C., constitutional review of Judgment ARJ-UZVP-No. 45/2021 of the Supreme Court of Kosovo of 28 April 2021  

KI230/21, judgment of 26 July 2022, published on 5 September 2022

Keywords: legal entity, Law on tax administration and procedure, violation of the right to fair and impartial trial, unreasoned decision

The dispute started after a reassessment procedure by Kosovo Customs of the value of the goods declared for customs clearance by the Applicant which he had imported from the Chinese Company “BAI LEE Company”. The Decision on reassessment was challenged by the Applicant at the second instance of the Kosovo Customs which upheld the first instance decision, finding, among others, that the value of the declared goods did not result to be the real value paid for goods for import purposes. These decisions were challenged by the Applicant before the regular courts which upheld the findings of the Kosovo Customs. During the court proceedings, a hearing session was held before the Basic Court, but it was not held also before the Court of Appeals. Hence, among others, the contentious issue was the obligation of the Court of Appeals to hold a hearing session, an issue which the Applicant has raised through his request for extraordinary review of the decision, stating among others, that the Court of Appeals was obliged to hold a hearing session, because paragraph 1 of Article 81.G (Hearing) of the Law 04/L-102 amending and supplementing the Law on Tax Administration and Procedure No. 03/L-222 stipulates that that the Fiscal Division of the Administrative Department of the Basic Court and the Court of Appeal shall hold a public hearing where parties are heard and evidence is reviewed. The Supreme Court rejected as ungrounded the request for extraordinary review of the court decision, thereby failing to address the Applicant’s allegation that no hearing session was held at the Court of Appeals.

The Applicant alleged before the Court a violation by the Supreme Court of 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 the Supreme Court has not considered, that is, it has not reasoned his essential and decisive allegation with respect to the Court of Appeals’ failure to hold a hearing session.

When considering the Applicant’s allegations of violation of his rights to fair and impartial trial as a result of the lack of a reasoned court decision, the Court first elaborated, and then applied in the circumstances of this case, the principles of its case-law and the case-law of the European Court of Human Rights, recalling that based on the latter, the extent to which the obligation to give reasons is applied may differ depending on the nature of the decision and should be determined in terms of the circumstances of concrete case, however, it is the duty of all courts to address and reason the essential and decisive allegations of the parties. In the concrete case, the Court found that the Supreme Court did not respond to the Applicant regarding the allegation related to the issue of the failure to hold a public hearing before the Court of Appeals, as stipulated in Article 81.G of the Law on Tax Administration and Procedure. The Court considered that this allegation of the Applicant was important, essential and decisive in terms of the exercise of its procedural rights. The Court also noted that its finding is related only to the Applicant’s procedural rights and the findings contained in the Judgment do not in any way prejudge the merits of the case remanded for reconsideration.

Therefore and on the basis of the clarifications given in the published judgment, the Court found that the challenged Judgment [ARJ-UZVP-no.45/2021] of 28 April 2021 of the Supreme Court was rendered in violation of the procedural guarantees provided under 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, and it remanded the challenged Judgment for reconsideration  to the Supreme Court.