Notification on the published Judgment KI36/23

The Constitutional Court of the Republic of Kosovo has published the Judgment in case KI36/23, submitted by “Dona Impex” sh.p.k., whereby was requested the constitutional review of the Judgment [E. Rev. No. 45/2021] of the Supreme Court of the Republic of Kosovo, of 10 November 2022, was requested. The Court, unanimously, decided (i) to declare the Referral admissible; (ii) to hold that there has been a violation of 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 Judgment [E. Rev. No. 45/2021] of the Supreme Court of the Republic of Kosovo, of 10 November 2022, invalid, and to remand the latter for reconsideration in accordance with the Judgment of this Court.

The Court initially clarified that the circumstances of the present case relate to a lease contract concluded on 6 April 2005, between the Applicant and the Public Housing Enterprise, for the use of commercial premises, a contractual relation which was extended with the contracts dated 7 March 2006, 27 August 2007, 15 September 2009, and tacitly until 7 March 2014. Subsequently, the Public Housing Enterprise filed a lawsuit with the Municipal Court against the Applicant for payment of debt based on the lease contract of the commercial premises for the contested period, namely 2005–2014. Since the Municipal Court in Prishtina declared itself lacking jurisdiction to decide on the case, the case was transferred to the Basic Court in Prishtina, and the latter approved in its entirety the statement of claim of the Public Housing Enterprise, obliging the Applicant to pay the total debt in the name of lease in the amount of 33,766.01 euros. Following the Applicant’s appeal to the Court of Appeals, the latter approved the appeal and remanded the case for reconsideration, a procedure that again resulted in the approval of the statement of claim of the Public Housing Enterprise. The Decision of the Basic Court in Prishtina was subsequently upheld by the Court of Appeals, while the Supreme Court, although it rejected the revision submitted by the Applicant as unfounded, in the reasoning of its judgment, nevertheless emphasized that the decision of the second instance, namely that of the Court of Appeals, “is involved with essential violations of the provisions of the contested procedure”.

The Applicant challenged the decision-making of the Supreme Court before the Court, alleging that his rights guaranteed by Articles 3 [Equality Before the Law], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], and 54 [Judicial Protection of Rights] of the Constitution, as well as Article 6 (Right to a fair trial), Article 13 (Right to an effective remedy), and Article 14 (Prohibition of discrimination) of the European Convention on Human Rights, had been violated, arguing essentially that the Judgment of the Supreme Court was contradictory and unreasoned.

The Court, in order to assess the Applicant’s allegations, initially requested the Supreme Court to submit the relevant clarifications regarding a paragraph of its Judgment, which, as noted above, among other things, despite emphasizing that the decision of the Court of Appeals is involved with essential violations of the provisions of the contested procedure, rejected the revision submitted by the Applicant as unfounded. In its response, the Supreme Court clarified that the judge who had presided over the Panel in this case was retired and that based on the general content of the challenged Judgment, it is observed that the paragraph in question results to be a technical error.

In the above-mentioned context and according to the clarifications provided in the Judgment, the Court considered that the Applicant had raised before the Court substantial issues regarding the addressing of his case, specifically the fact that the challenged decision of the Supreme Court had contradictions between (i) the given reasoning, namely the contested paragraph which also results to be in contradiction with the rest of the reasoning and the very enacting clause, according to which, the revision submitted by the Applicant against the aforementioned decision of the Court of Appeals is rejected as unfounded. According to the clarifications provided in the Judgment, the Court, among other things, considered that the part of the reasoning of the challenged Judgment, which results to be in contradiction with the enacting clause itself, does not result to be a mere technical issue, but it rather reflects a lack of a reasoned judicial decision in contradiction with the procedural guarantees related to the right to a fair and impartial trial as stipulated by the Constitution.

Consequently, based on all the foregoing, the Court held that the challenged Judgment of the Supreme Court does not meet the standard of a fair and impartial trial 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, due to the lack of a reasoned decision. Finally, the Judgment also clarifies that the Court’s finding relates only to the lack of reasoning of the judicial decision and in no way prejudices the merits of the case during the reconsideration by the Supreme Court.

This translation is unofficial and serves for informational purposes only.

Note:

This press release was prepared by the Secretariat of the Court for informational purposes only. The full text of the decision has been served to the parties involved in the case, is published on the Court’s website and will be published on the Official Gazette within set deadlines. To receive notifications on the decisions from the Constitutional Court please register at the Court’s website: https://gjk-ks.org/en/