Constitutional Court

KI49/20, Applicant: Shehide Muhadri, Request for constitutional review of Judgment [Ac. No. 530/2016], of the Court of Appeals of Kosovo of 10 December 2019

KI49/20, Judgment of 20 January 2022 published on 23 March 2022

Keywords: individual referral, right to fair and impartial trial, right to a reasoned court decision

The circumstances of the present case are related to the property right over a number of plots of land, which the Municipality of Lipjan had purchased from private owners in the 60s, with funds provided by the International Refugee Fund, the United Nations Organization, with purpose of resettlement and integration of refugees who came from Albania to Kosovo in the 60s. Despite the fact that the plots were given for use to refugees, among whom was the Applicant, they remained registered as property of the Municipality of Lipjan.

The Applicant and a group of other persons filed a lawsuit with the Municipal Court in Lipjan, against the Municipality of Lipjan, through which they requested confirmation of ownership of the disputed parcels, claiming that they have been in legal possession of the parcels since 1969. The Municipal Court in Lipjan approved the lawsuit and rendered Judgment recognizing the right of ownership to the claimants, including the Applicant. However, the Court of Appeals, following the appeal of the Municipality of Lipjan, annulled the Judgment of the Basic Court and remanded the case for retrial. In the repeated procedure, the Basic Court rejected the statement of claim of the Applicant and of the other claimants, as it assessed that according to the applicable legislation, the right of ownership in social property in no circumstances can be acquired on the basis of prescription. The claimants, including the Applicant, filed an appeal with the Court of Appeals, alleging that the Basic Court departed from its case law, as in similar circumstances with the other claimants, the Basic Court recognized the right to property as a consequence of prescription. The Court of Appeals rejected the appealing allegations of the Applicant as ungrounded, upholding the decision of the Basic Court. Challenging the decision of the Court of Appeals, the Applicant, by Referral KI145/18, requested from the Constitutional Court the constitutional review of the Judgment of the Court of Appeals, alleging, inter alia, violation of Articles 24 [Equality Before the Law] and 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights.

Analyzing and reviewing the Applicant’s allegations in Referral KI 145/18, in the context of the right to a reasoned court decision, the Court, by Judgment KI145/18 of 19 July 2018, concluded that the Court of Appeals was not responding to the Applicant’s allegation regarding discrimination but also the departure from the case law of the Basic Court in similar legal and factual circumstances. Consequently, the Court found that the Judgment of the Court of Appeals was rendered contrary to the procedural guarantees set out in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights and remanded the case for retrial to the Court of Appeals.

In the repeated procedure, the Court of Appeals rejected again the Applicant’s lawsuit. The Court of Appeals, by the new decision, inter alia, stated that (i) it is correct that the Applicant’s case and the other cases to which the latter refers have “the same factual and legal circumstances”; and (ii) it cannot be considered that these decisions present a source of law, namely the decision-making other than these decisions does not mean that there is a departure from the case law; but (iii) despite the fact that it assessed that the factual and legal circumstances were the same, did not reason, despite the Applicant’s specific allegations, the issuance of a different decision in the circumstances of her case; and (iv) did not even address the main finding of the previous Judgment of the Court, namely Judgment KI145/18, that the Applicant’s allegation of unequal treatment before the courts was substantial and raised issues under Article 24 of the Constitution, namely the issue of inequality of parties before the law. Challenging the findings of the Court of Appeals, the Applicant again addressed the Constitutional Court, alleging a violation of Articles 24 and 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, because the Court of Appeals in its repeated proceedings did not address the findings of the Constitutional Court in Judgment KI145/18.

In assessing the Applicant’s allegations, the Court first elaborated on the general principles of its case law and of the European Court of Human Rights regarding the reasoning of court decisions, and then applied the latter to the circumstances of the present case. In this regard, the Court found that, in the repeated procedure, the Court of Appeals did not address the findings of the Court by Judgment 145/18 and did not reason again the different decision-making in similar factual and legal circumstances, namely did not provide reasoning (i) whether there has been different treatment and decision-making of the Basic Court in similar factual and legal circumstances; and (ii) if the answer is yes, whether  there are reasonable grounds for such a departure from the case law.

The Court, based on its consolidated case law and insofar as it is relevant to the circumstances of the present case, stated, inter alia, that the failure to provide clear and complete answers regarding the substantive and defining allegations raised by the Applicant, is not in compliance with the guarantees related to the right to a reasoned decision, as an integral part of the right to fair and impartial trial guaranteed by the Constitution and the European Convention on Human Rights.

Consequently and based on the clarifications given in the published Judgment, the Court found that the challenged Judgment of the Court of Appeals was rendered contrary to the procedural guarantees established in Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Rights to a fair trial) of the European Convention on Human Rights, remanding the latter for retrial to the Court of Appeals.