Constitutional Court

KI06/21, Applicant: Dragan Mihajlović, Referral for constitutional review of proceedings before the Court of Appeals of the Republic of Kosovo, regarding the case Ac. no. 3930/2016 

KI06/21 Judgment of 22 December 2022, published on 7 February 2023

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

The circumstances of the present case relate to a property dispute between the Applicant and the Municipal Assembly of Prizren, which according to the Applicant’s allegations, had taken the property and therefore had not compensated him. Consequently, on 27 December 2004, the Applicant filed a lawsuit with the Municipal Court in Prizren, claiming compensation for the property in question. After three (3) decisions of the Basic Court in Prizren, which approved the Applicant’s lawsuit and two (2) decisions of the Court of Appeals, whereby the Applicant’s case was remanded for retrial, his case continues to be under review by the Court of Appeals.

The Applicant challenged before the Court the prolongation of the court proceedings, alleging that his case was not tried within a reasonable time, since the regular courts have not yet ruled on his lawsuit filed in 2004 and consequently have violated the guarantees of the right to a fair and impartial trial, stipulated by 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.

Reviewing the Applicant’s abovementioned allegation, the Court first elaborated the general principles of its judicial practice and of the European Court of Human Rights, and then applied them to the circumstances of the present case. The Court, inter alia, emphasized that, according to these principles, the calculation of the timely extension of proceedings begins at the moment when the competent court is put into motion at the request of the parties for the establishment of an alleged right or legitimate interest, and continues until a final judicial decision is issued and enforced by a final competent judicial instance. Whereas, the reasonableness of the duration of the proceedings should be reviewed 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; and (iv) the importance of what is at stake for the Applicant in the dispute.

Regarding the period to be taken into account in the present case, the Court considered that the period to be taken into account in relation to the Applicant’s allegation to have his case ruled within a reasonable period is calculated from the date of filing of the lawsuit, namely 27 December 2004 onwards, given that the case of the Applicant for more than sixteen (16) years after the filing of the lawsuit is still pending before the Court of Appeals. Whereas, in the application of the criteria regarding the reasonableness of the duration of proceedings, the Court initially found that, (i) although the circumstances of the present case relate to a property dispute with three (3) different parties involved in the proceedings, it does not appear to be of such a complex nature that it could justify that the court proceedings for the resolution of the respective dispute should not be completed for more than sixteen (16) years; (ii) the Applicant has not contributed to the prolongation of the proceedings through his actions but has only followed the procedural steps for the realization of his right to compensation regarding the contested property; whereas (iii) the regular courts, even after more than sixteen (16) years, have not resolved his case, as the same still awaits to be resolved by the Court of Appeals according to the appeal. Taking into account the cumulative application of the above criteria, the Court held that, in the circumstances of the respective case, the duration of the proceedings cannot be considered reasonable and that, consequently, 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 duration of the proceedings related to the Applicant’s lawsuit constitutes a violation of the right to a court decision within a reasonable time, stipulated by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights, the Court ordered the Court of Appeals to inform it as soon as possible, but no later than 22 June 2023, of the measures taken to implement its Judgment. The Court also clarified that it does not have the competence to award compensation, but based on its judicial practice, the Applicant may use the legal remedies available under the legislation in force for further exercise of his rights, including the right to claim compensation for material and non-material damage, resulting from the violation of the right to a fair and impartial trial within a reasonable time as guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights.