Constitutional Court

KI41/22, Applicant:  Shkumbin Qehaja, Constitutional review of Judgment [AC-I-21-0867-A001] of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo of 10 March 2022

KI41/22, Judgment of 4 April 2023, published on 16 May 2023

Keywords: individual referral; failure to hold a hearing; violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights

The circumstances of the present case are related to a lawsuit filed by the Applicant against the Radio Television of Prishtina for confirmation of the property rights over a cadastral parcel in Prishtina, which according to the case files appears to be a socially-owned property. The Applicant and the representatives of the Radio Television of Prishtina reached a court settlement before the Basic Court in Prishtina on 10 April 2019, and consequently, the disputed property was transferred to the Applicant’s ownership. However, on 28 October 2019, the Privatization Agency of Kosovo, as a representative of socially-owned enterprises, filed a lawsuit against the Basic Court in Prishtina, motioning the annulment of the court settlement and particularly contesting the jurisdiction of the Basic Court in this trial. The Privatization Agency of Kosovo claimed that considering that, the subject of the court settlement was a socially-owned immovable property and administered by the Privatization Agency of Kosovo, the Basic Court in Prishtina had no jurisdiction over the case, and the latter should have therefore referred the case to the Special Chamber of the Supreme Court. In dealing with the lawsuit of the aforementioned Agency, the Basic Court in Prishtina declared itself incompetent and referred the case to the Special Chamber of the Supreme Court for further consideration. The Applicant, through the response to the lawsuit filed by the Privatization Agency of Kosovo, also requested to hold a hearing.

Then, the Specialized Panel of the Special Chamber of the Supreme Court granted the lawsuit of the Privatization Agency of Kosovo, inter alia, on the grounds that the court settlement cannot produce legal effects because it was issued by the Basic Court, which in the present case did not have a subject matter jurisdiction to deal with the case and moreover, the persons who signed on behalf of the Radio Television of Kosovo did not have specific powers of attorney from the Privatization Agency of Kosovo. The Specialized Panel of the Special Chamber of the Supreme Court rejected the respective request for holding a hearing. Through the appeal filed to the Appellate Panel of the Special Chamber of the Supreme Court against the above-mentioned decision, the Applicant once again requested the holding of a hearing. The Appellate Panel of the Special Chamber of the Supreme Court rejected the Applicant’s appeal as unfounded, as well as the request to hold a hearing related to the case. The Applicant challenges this Judgment before the Court, underlining that the same has been issued in violation of Article 24 [Equality before the Law] and 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, essentially claiming that the violation of his rights protected by the Constitution came as a result of the refusal to hold the hearing at two decision-making instances before the Special Chamber of the Supreme Court.

In assessing the constitutionality of the aforementioned Judgment, the Court focused on the allegations related to the lack of a hearing before the Special Chamber of the Supreme Court and in this context it (i) initially elaborated on the general principles related to the right to a hearing as guaranteed by the Constitution and the European Convention on Human Rights, and then (ii) applied the same in the circumstances of the present case. The Court based on its five (5) Judgments in the cases of the former enterprise “Agimi”, the Judgment in case KI 108/22, with the Applicant “Metalinvest SH. A.” and other cases of the same nature as well as, inter alia, based on the Judgment of the European Court of Human Rights “Ramos Nunes de Carvalho e Sá v. Portugal”, reiterated the key principles regarding (i) the right to a hearing before the first instance courts; (ii) the right to a hearing before the second and third instance courts; (iii) the principles based on which it must be established whether the hearing is necessary; and (iv) if the hearing was not held at the first instance, can this be remedied by holding a hearing at a higher instance and the relevant criteria for making this assessment.

Based on these principles, the Court concluded that the challenged Judgment [AC-I-21-0867-A001] of the Appellate Panel of the Special Chamber of the Supreme Court of 10 March 2022 was issued in violation of the guarantees embodied in paragraph 2 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of the European Convention on Human Rights, with a view to the right to a hearing, inter alia, because ( i) the Applicant has expressly requested that a public hearing should be held before the Appellate Panel of the Special Chamber of the Supreme Court if it is deemed necessary for further clarifications, thus obliging this Panel to address the necessity of holding a hearing, an obligation which, in fact, should have been observed ex officio by the Special Chamber of the Supreme Court according to the applicable law; and (ii) the Appellate Panel of the Special Chamber of the Supreme Court failed to address “exclusively legal or highly technical matters”, based on which issues the “extraordinary circumstances that would justify the lack of a hearing” could have existed in two decision-making instances within the Special Chamber of the Supreme Court. As explained above, the Court has already found through Judgments in the cases of the former enterprise “Agimi”, the Judgment in case KI 108/22, with the Applicant “Metalinvest SH. A.” as well as other cases of the same nature a procedural violation in the proceedings before the Special Chamber of the Supreme Court as a result of non-handling, refusal and lack of justification for not holding hearings in two decision-making instances.

As a result, the Court found that the above-mentioned Judgment of the Appellate Panel of the Special Chamber of the Supreme Court does not comply with the constitutional guarantees and consequently, it remanded the case to reconsideration. The Court also emphasized that its finding of a violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, in the circumstances of the present case, relates exclusively to the procedural guarantees, namely to the lack of a hearing in two decision-making instances, and in no way it relates nor prejudices on the outcome of the merits of the case. This Judgment will also be completed with a dissenting opinion.