Constitutional Court

KI43/24, applicant, Merita Visoka, Eroll Visoka and Melinda Visoka, Constitutional review of Decision Rev. no. 382/2023 of the Supreme Court of the Republic of Kosovo of 17 October 2023

KI43/24, judgment of 24 September 2024, published on 30 October 2024

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

On 24 September 2024, the Constitutional Court of the Republic of Kosovo decided on referral KI43/24, in which a constitutional review of the Resolution [Rev. no. 382/2023] of 17 October 2023 of the Supreme Court of the Republic of Kosovo was requested. The Court decided unanimously (i) to declare the referral admissible; (ii) to find that the Ruling [Rev. no. 382/2023] of 17 October 2023 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; and (iii) to declare invalid Decision [Rev. no. 382/2023] of 17 October 2023 of the Supreme Court; and to remand the same for reconsideration in accordance with the Judgment of this Court.

The Judgment first clarifies the circumstances of the present case are related to a dispute concerning the confirmation of property rights over immovable properties, a proceeding in which the Applicants appeared in the capacity of plaintiffs. According to the clarifications given in the Judgment, (i) the property in question was expropriated in 1980, which then was registered as a socially-owned property in the name of the Municipality of Podujeva; (ii) the applicants initiated the legal proceedings, whereby they requested to confirm that they are the owners of the immovable property, and (iii) in the statement of claim they did not specify the value of the dispute in question. The Basic Court and the Court of Appeals rejected the applicants’ claim in its entirety, while the request for revision submitted to the Supreme Court was rejected on procedural grounds, namely with the reasoning that the value of the object of the dispute does not exceed the threshold of 3,000 euro according to the provisions of paragraph 3 of article 211 (untitled) of the Law on Contested Procedure, in spite of the fact that the same was stipulated in the pre-trial proceedings.

The applicants before the Court challenge the aforementioned Resolution of the Supreme Court, alleging violation of the rights protected by Article 3 [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. In essence, the applicants claim that the decision of the Supreme Court infringed their right of „access to court“ guaranteed by the aforementioned articles of the Constitution and the European Convention on Human Rights, among others because (i) the courts did not determine the value of the object of the dispute ex officio despite the specific obligation to do so, arising from the Law on Contested Procedure; while (ii) the Supreme Court had rejected the request for revision precisely on the grounds of the value of the dispute, despite the failure of the lower courts to determine such value.

In assessing the applicants’ allegations, the Court (i) elaborated on the general principles of the right of 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 regarding the ratione valoris restriction of access to courts of higher instance, and then (ii) continued 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 Zubac v. Croatia, which the Court applied also in a case before it, namely KI199/22, applicant  P.T.P. “Arta XH”, that pertain to the ratione valoris restriction of access to the Supreme Court. The Judgment, first emphasized that the competence of the Supreme Court, provided by law, before assessing the merits of the revision, to examine the permissibility of the revision in terms of the ratione valoris threshold, based on paragraph 3 of Article 211 of the Law on Contested Procedure, is not contentious. In addition, in the application of the aforementioned criteria to the circumstances of the present case, the Judgment also highlights that, taking into account the very essence of the jurisdiction and competence of the Supreme Court, as the highest judicial authority, to adjudicate on issues of legality of decisions taken by lower instance courts, the ratione valoris threshold is (i) prescribed by law; and (ii) pursues a legitimate aim, which serves to support the rule of law and the proper administration of justice.

However, in assessing whether, in the circumstances of the present case, evaluation of the ratione valoris threshold (iii) was proportionate to the legitimate aim, the Court considered that the conclusion of the Supreme Court, based on the case law of the European Court of Human Rights, as well as its case law, qualifies as „excessive formalism“ in the interpretation and application of the law in the context of access to court, 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 rejection of revision with the argument that the value of the object of the dispute in the circumstances under which such value has not been determined by the lower courts in spite of obligations arising from the applicable law, has resulted in infringement of the applicants’ right of access to justice, i.e. the right to effectively use the legal remedy of the request for revision according to the provisions of the Law on Contested Procedure.

The Court also highlighted 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 the European Convention on Human Rights, refers only to the specific circumstances of this case, the assessment of which must be made on a case-by-case basis, and refers only to the right of access to the court, i.e. the Supreme Court, and does not in any way prejudice the outcome of the merits of the case.

This translation is unofficial and serves for informational purposes only.