Constitutional Court

KI04/23, Applicant Avdyl Bajgora, Constitutional review of Decision [Rev. no. 43/2022] of 10 October 2022 of the Supreme Court

KI04/23, Judgment of 30 May 2024, published on 30 July 2024

Key words: admissibility of revision before Supreme Court, ratione valoris threshold, right of access to court, proportionality of limitation, right to fair and impartial trial

The Constitutional Court of the Republic of Kosovo, on 30 May 2024, has decided regarding referral KI04/23, whereby the constitutional review of the Decision [Rev. no. 43/2022] of the Supreme Court of Kosovo, of 10 October 2022 was requested. The Court, with eight (8) votes for and one (1) against, decided to (i) declare the referral admissible; (ii) to find that the Decision [Rev. no. 43/2022] of 10 October 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 the Decision [Rev. no. 43/2022] of 10 October 2022 of the Supreme Court invalid; and (iv) remand the Decision [Rev. no. 43/2022] of 10 October 2022 of the Supreme Court for reconsideration of the revision on merits, in accordance with the finding given in the Judgment.

The judgment initially clarifies that the applicant submitted his first referral to the Court, registered with the number KI143/21, whereby he contested the Decision [Rev. no. 558/2020] of the Supreme Court of 22 February 2021, which was related to his claim for compensation of three (3) jubilee salaries from the Kosovo Energy Corporation, after the latter rejected his request for recognition of the right to the aforementioned compensation. The Basic Court approved the claim of the applicant as grounded, the Court of Appeals, acting on the appeal of the Kosovo Energy Corporation, modified the Judgment of the Basic Court, rejecting the claim of the applicant in its entirety, while the Supreme Court found that the revision in this case is not permitted, because the value of the dispute did not exceed the amount of 3,000.00 euro, as established in paragraph 2 of Article 211 (no title) of the Law on Contested Procedure. The applicant, on 7 August 2021, submitted a referral to the Court, challenging the constitutionality of the above-mentioned Decision of the Supreme Court, claiming that, among other things, his rights guaranteed by Article 31 [Right to Fair Trial and Impartial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights have been violated.

In case KI143/21, the Court, by its Judgment of 25 November 2021, found that the Judgment [Rev. no. 558/2020] of the Supreme Court, of 22 February 2021, was rendered in violation of the applicant’s right to access to the court, as an integral part of the right to a fair and impartial trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights.

The judgment further clarifies that, as a result of Judgment KI143/21 of the Constitutional Court, the Supreme Court, on 10 October 2022 rendered Decision [Rev. no. 43/2022] whereby it again rejected the revision of the applicant as impermissible. In essence, the Supreme Court again found that the value of the dispute did not exceed the amount of 3,000 euro as established in paragraph 2 of Article 211 of the Law on Contested Procedure. The applicant contested again before the Court the Decision of the Supreme Court, claiming, among other things, that as a result of the decision of the Supreme Court, (i) the right to fair and impartial trial, guaranteed by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights has been violated, as a result of the rejection to consider his request for revision, including contrary to the findings of the Constitutional Court by the Judgment in case KI143/21.

The Court, taking as a basis the reasoning and finding of the Supreme Court, by its second Decision, which is again related to the permissibility of the revision, assessed that the applicant’s allegations fall within the scope of his right to access the court, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights. This is because the essential allegations raised in his request were related to whether the Supreme Court, by dismissing his revision again as impermissible due to the value of the dispute, has disproportionately affected his right to render a decision on merits regarding his statement of claim.

Based on the above and the assessment of whether the applicant’s 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, for (ii) proceeded with the application of these principles and criteria in the circumstances of the present case.

The Court’s judgment 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 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 threshold ratione valoris. 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 euro stipulated by paragraph 2 of article 211 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 before the lower instance courts; and (c) whether in applying this restriction the Supreme Court has used “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 threshold ratione valoris, based on paragraph 2 of Article 211 (no title) of the Law on Contested Procedure, before assessing the revision on merits, is not disputed. Furthermore, 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 the decisions rendered by the lower instance courts as the highest judicial authority, the threshold ratione valoris is (i) prescribed by law; and (ii) pursues a legitimate aim, which serves the compliance with the rule of law and the proper administration of justice.

However, taking into account that in the circumstances of the present case, as it also emphasized in its first Judgment, namely the Judgment in case KI143/21, the rejected value of the claim according to the provisions of the enacting clause of the Court of Appeals itself, exceeded the total value of 3,000 euro, according to the clarifications provided in the published Judgment, the Court, applying the principles stemming from the case law of the European Court of Human Rights, reiterated that the very formalistic interpretation of the Supreme Court related to the threshold rules of the value of the object of dispute in the circumstances of the applicant’s case, and which are directly related to the contested Judgment of the Court of Appeals, do not coincide with the criterion of guaranteeing the practical and effective right of access to the court within the meaning of paragraph 1 of article 31 of the Constitution, in conjunction with paragraph 1 of article 6 of the European Convention on Human Rights. As a result of this assessment, the Court considered that the contested Decision of the Supreme Court, which for the second time rejected the applicant’s revision as impermissible, unjustifiably and/or disproportionately violated the applicant’s access to its jurisdiction, creating an obstacle for his case to be resolved on merits.