Constitutional Court

KI172/23, applicant Rejhane Ceka, Fiknete Ceka, Lejlane Ceka and Sara Ceka, Constitutional review of Decision Rev. no. 216/2023, of 19 June 2023 of the Supreme Court of Kosovo in conjunction with Judgment Ac. no. 3023/2020, of 7 April 2023, of the Court of Appeals of Kosovo

KI172/23, Judgment of 30 May 2024, published on 30 July 2024

Keywords: individual referral, right to fair and impartial trial, right of access to the court, ratione valoris

The Constitutional Court of the Republic of Kosovo, on 30 May 2024, has decided regarding Referral KI172/23, whereby the constitutional review of the Decision [Rev. no. 216/2023] of 19 June 2023 of the Supreme Court of Kosovo was requested. The Court, by 8 (eight) votes for and 1 (one) against, decided to (i) declare the referral admissible; while, by 5 (five) votes for and 4 (four) against, decided: (ii) to hold that the Decision [Rev. no. 216/2023] of 19 June 2023 of the Supreme Court, is not compatible 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) to declare invalid the Decision [Rev. no. 216/2023] of 19 June 2023 of the Supreme Court; and (iv) remand the latter for retrial in accordance with the Judgment of this Court.

The Judgment first clarifies the circumstances of the present case related to the claim of the applicants and their parents against the insurance company for compensation of material and non-material damage due to the death of their brother in a traffic accident, who was insured in this company. Initially, the Basic Court approved their claim and that of their parents in terms of compensation for material and non-material damage, where for the non-material damage, the applicants were compensated separately in the amount of €8,000 (eight thousand euro), while each parent up to €10,000 (ten thousand euro). As a result of the appeal of the insurance company, the Court of Appeals confirmed the compensation for the material and non-material damage in relation to the parents of the applicants, while modifying the Judgment of the Basic Court, reducing the amount from €8,000 (eight thousand euro) to €5,000 (five thousand euro) for each of the applicants. As a result, the applicants jointly filed a revision against the Judgment of the Court of Appeals, which the Supreme Court, by the contested Judgment, rejected as impermissible on the grounds that the value of the object of the dispute in the contested part of the judgment does not exceed the amount of €3,000 (three thousand euro) for each of them, and that it considered them as simple co-litigants, where the procedural position of a co-litigant does not depend on the procedural position of the other co-litigants, therefore, the value of the dispute is taken separately for each one of them.

The applicants before the Court challenged the aforementioned Decision of the Supreme Court, claiming a violation of their rights protected by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, articles 32 [Right to Legal Remedies], 54 [Judicial Protection of Rights] as well as paragraphs 3 and 5 of article 102 [General Principles of the Judicial System] of the Constitution. In essence, the applicants before the Court claimed that as a result of the decision of the Supreme Court, (i) the right to fair and impartial trial, guaranteed by Article 31 [Right to Fair and Impartial Trial] of Constitution and Article 6 (Right to a fair trial) of the European Convention on Human Rights have been violated, because the value of the object of their dispute exceeds the value of €3,000 (three thousand euro), established in the legal provisions of Law on Contested Procedure, on the grounds that their claims in the contested part of the judgment of the Court of Appeals by revision, which had the value of 3,000 € (three thousand euro) separately, are not separate disputes but constitute a single claim, among other things, because they rely on the same legal and factual basis and relate to one respondent, as well as contain the same requests for all claimants.

The Court, based on the reasoning and findings of the Supreme Court, assessed that the essential claims of the applicants fall within their right of access to the court, guaranteed 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. This is because the essential claims raised in their referral were related to whether the Supreme Court, by dismissing their revision as impermissible due to the value of the dispute, has disproportionately affected their right to rendering the decision on merits regarding their claim.

Based on this and the assessment of whether the applicants’ right to 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 the principles and criteria developed by the European Court of Human Rights that relate to the ratione valoris restriction for access to higher instance 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 the 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 instances 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 €3,000 (three thousand euro) established by paragraph 2 of article 211 of the Law on Contested Procedure; (b) whether the Applicants or the Supreme Court should bear the consequences of the errors made during the procedure 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, based on paragraph 2 of Article 211 (no title) of the Law on Contested Procedure is not disputed. Further, in the application of the aforementioned criteria in the circumstances of the present case, the Judgment also emphasizes that taking as a basis the very essence of the jurisdiction and competence of the Supreme Court to adjudicate on issues of legality of decisions issued 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. More specifically, the Judgment clarified that the primary duty of the Supreme Court is to elaborate and apply the relevant provisions of the Law on Contested Procedure that are related to co-litigation and the determination of the value of the object of dispute, in their entirety and not isolated, respectively, that the latter should not have completely disregarded Article 32 of the Law on Contested Procedure in the application of Article 211 of the LCP in conjunction with Article 268 of the LCP, which specifies the determination of value of the object when the respective claims are based on the same factual and legal basis, since their application and/or justification for their non-application was decisive for the parties that submitted the revision. 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 the Supreme Court, so that it does not in any way prejudge the outcome of the merits of the case.

This Judgment has also been supplemented with a dissenting opinion.