Constitutional Court

KI199/22, Applicant: P.T.P. “Arta XH”, Constitutional review of the decision [E. Rev. no. 75/20] of the Supreme Court of Kosovo dated 1 August 2022

KI199/22, Judgment of May 30 2024, published on 30 July 2024

Keywords: admissibility of revision before the Supreme Court, threshold ratione valoris, rights of access to court, proportionality of restrictions, right to a fair and impartial trial

The Constitutional Court of the Republic of Kosovo, on 30 May 2024, has decided on referral KI199/22, which sought the constitutional review of the Decision [E. Rev. no. 25/20] of 1 August 2022, of the Supreme Court of Kosovo. The Court, with seven (7) votes in favor and one (1) against, decided to (i) declare the referral admissible; (ii) hold that the Decision [E. Rev. no. 25/20] of 1 August 2022, of the Supreme Court, is not in compliance with paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights; (iii) declare invalid the Decision [E. Rev. no.25/20] of 1 August 2022, of the Supreme Court; and (iv) to remand the latter for reconsideration in accordance with this Court’s Judgment.

The Judgment first clarifies that the circumstances of the present case are related to a dispute for compensation of damage and the relevant company with which there was a contractual relationship.

According to the clarifications given in the Judgment, (i) the applicant and the relevant company had concluded a contract in 2002, related to the sale of scrap metal; (ii) in December 2010, the company underwent the privatization process and was registered as a new legal entity, and continued to fulfill its contractual obligations until 19 August 2011, when it unilaterally terminated the contract with the applicant; (iii) the applicant initiated the legal proceedings, requesting the corresponding compensation for the damage, also specifying that the value of the object of the dispute must be determined through evidence and financial expertise provided by a financial expert. The Basic Court and the Court of Appeals rejected the applicant’s lawsuit in its entirety, including the specific request to determine the value of the object of the dispute according to the provisions of Article 36 (no title) of the LCP, while the request for revision submitted to the Supreme Court , was rejected on procedural grounds, namely the reasoning that the value of the object of the dispute did not exceed the threshold of 10,000 euro according to the provisions of Article 508 (no title) of the LCP.

The applicant before the Court challenges the aforementioned Decision of the Supreme Court, claiming a violation of the rights protected 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. In essence, the applicant claimed that the decision of the Supreme Court violated his right to “access to court” guaranteed by the aforementioned articles of the Constitution and the European Convention on Human Rights, among other things because (i) despite the continuous request, the value of the dispute was not determined in the court proceedings; (ii) the courts failed to determine the value of the object of the dispute ex officio despite the specific obligation stemming from the Law on Contested  Procedure; while (iii) the Supreme Court rejected the request for revision precisely on the basis of the value of the dispute, despite the failure of the lower courts to determine this value.

In assessing the claims of the applicant and whether his right of access to the Supreme Court has been violated, the Court (i) elaborated the general principles of the right to access to the court, developed through the case law of the European Court of Human Rights and affirmed through the case law of the Constitutional Court, including here the principles and criteria developed by the European Court of Human Rights that are related to the ratione valoris restriction for access to higher courts, to (ii) continue with the application of these principles and criteria in the circumstances of the present case.

The Judgment of the Court specifically refers to the principles and criteria established in the case of the European Court of Human Rights in case Zubac v. Croatia, through which the latter had developed a specific test in terms of the criterion of proportionality of the restriction of access to the courts of the highest instance as a result of the ratione valoris threshold. In applying the criteria related to the ratione valoris threshold, the Court in the specific circumstances of the present case, assessed whether: (i) access to the Supreme Court as a result of the ratione valoris threshold constituted a restriction; (ii) whether this restriction pursued a legitimate aim; and (iii) whether the restriction was proportionate, and in the sense of the latter, in accordance with the test developed by the European Court of Human Rights assessed the issues related to (a) the foreseeability of the restriction on access to the court as a result of the threshold of the value of the object in the amount of €10,000 (ten thousand euro) established in Article 508 of the Law on Contested Procedure; (b) whether the Applicant or the Supreme Court should bear the consequences of the errors made during the proceedings in the lower instance courts; and (c) whether in applying this restriction the Supreme Court has exercised “excessive formalism”, to conclude with its conclusion regarding the proportionality of the restriction of access to the Supreme Court.

The Judgment first emphasizes that the competence of the Supreme Court, established by law, to examine the permissibility of the revision in terms of the ratione valoris threshold prior to the assessment of the revision on merits, based on Article 508 (no title) of the Law on Contested Procedure, is not disputed. Furthermore, in the application of the aforementioned criteria in the circumstances of the present case, the Judgment also emphasizes that it is based on the very essence of the jurisdiction and competence of the Supreme Court to adjudicate on issues of legality of decisions rendered by lower instance courts as the highest judicial authority, the ratione valoris threshold is (i) prescribed by law; and (ii) pursues a legitimate aim, which serves compliance with the rule of law and the proper administration of justice.

However, in assessing whether the ratione valoris threshold (iii) was proportionate to the legitimate aim, the Court considered that the finding of the Supreme Court in the circumstances of the present case, based on the case law of the European Court of Human Rights, qualifies as “excessive formalism” in the interpretation and application of the law in the context of access to justice, among other things, because it is the obligation of the Supreme Court to interpret and apply the provisions of the Law on Contested Procedure in their entirety, and that the reference in Article 508 of the Law on Contested Procedure, and which determines that revision in commercial disputes is not allowed if the value of the object of the dispute in the contested part of the final judgment does not exceed €10,000 (ten thousand euro), cannot be applied in isolation from other applicable provisions, including Article 36 (no title) of the Law on Contested Procedure and which obliges the lower courts to act ex officio in determining the value of the object of the dispute in the circumstances specified in the aforementioned article. According to the clarifications provided, the failure of the lower courts, including despite the continuous requests of the applicant, to determine the value of the object of the dispute according to legal obligations, cannot result in the violation of the applicant’s rights to access to justice, namely the right to use the legal remedy of the request for revision according to the provisions of the Law on Contested Procedure. Consequently, the Court concluded that this action of the Supreme Court was not proportionate to the legitimate aim of the legal ratione valoris threshold regarding the guarantee of the right to access to higher courts.

The Court also emphasized the fact that, its finding of violation of paragraph 1 of 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 European Convention on Human Rights, applies only to the specific circumstances of the present case, the assessment of which must be done on a case-by-case basis, and is only related to the right of access to the court, namely to the Supreme Court, so that in no way it does not prejudge the outcome of the merits of the case.