Constitutional Court

KI120/19, Applicant: Mursel Gashi, request for constitutional review of  Decision AC-I-17-0568 of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters, of 14 March 2019 

KI120/19, judgment of 25 November 2021 published on 30 December 2021

Keywords: individual referral, right to  fair and impartial trial

The circumstances of this case refer to a number of properties whose recognition was sought by the Applicant through a claim. More precisely, he has sought recognition of property rights over 4 (four) cadastral parcels, specifically over parcels [no.588/1], [no. 598], [no.601] and [no. 604], which, he has bought according to the relevant sale- purchase contract from 1971, but based on the case file, he did not manage to have them registered in his name in the cadastral register. In 2007, 2 (two) of the 4 (four) above-mentioned parcels, namely cadastral parcels (no. 588] and [no. 598], by the judgment of the Municipal Court, became the property of the S. family, following the adoption of the claim of the latter filed against the social enterprise AIC „Kosova-Export“. Once the above-mentioned judgment of the Municipal Court becamse final, the relevant cadastral parcels were registered in the cadastral register as the property of the S. family.

In 2011, the Applicant filed a claim with the Special Chamber of the Supreme Court on  Privatization Agency of Kosovo Related Matters, (i) initially he sought a proof of ownership over the 4 (four) abovementioned parcels; while then (ii) by specifying the statement of claim, he requested that in relation to 2 (two) cadastral parcels that were registered in the name of family S as a result of the 2007 judgment, he be compensated with other parcels of the socially owned  enterprise AIC „Kosova-Export“.

The Specialized Panel of the Special Chamber rejected the Applicant’s claim, while after the appeal of the latter, in 2017, the Appellate Panel modified the decision of the Specialized Panel, by recognizing the Applicant’s ownership over the 4 (four) abovementioned parcels. However, the Appellate Panel (i) did not address the issue of compensation of cadastral parcels with other parcels, despite the fact that according to the specification of the claim it was clarified that 2 (two) disputable parcels were registered in the name  of the S. family as a result of a final judgment in 2007; and (ii) in determining the Applicant’s ownership over the relevant parcels, it used identification numbers under the old cadastral registry system which led to inconsistencies with the current cadastral system. Therefore, the Applicant again addressed the Appellate Panel  with a request (i) to rectify the Judgment in respect of the correct identification of the cadastral parcels; and (ii) to supplement the Judgment, namely requesting from the Appellate Panel to decide on all claims included in the appeal, more exactly to decide on the claim for compensation with other parcels of the above-mentioned socially-owned enterprise, as a result of the  2 (two) abovementioned parcels being registered in the name of family S.

In 2019, the Appellate Panel, by decision (i), approved the request for correction of the judgment in connection with the specification of 2 (two) parcels in accordance with the new cadastral system; while (ii) in connection with the request for compensation for 2 (two) abovementioned parcels, which were already owned by the S. family, the Appellate Panel rejected it, as inadmissible, stating that, in essence, that „there are no unresolved issues left“, because the Applicant has been recognized the ownership over the 4 (four) disputable parcels, but did not resolve the fact that 2 (two) parcels,  the ownership of which was recognized to the applicant, had already been registered as the property of the S. family, as a result of a final judgment.

The Applicant stated before the Court that the challenged decision of the Appellate Panel was rendered in violation of his rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] and Article 46[Protection of Property] of the Constitution and Article 6 (Right to a fair Trial) and Article 1 (Protection of property) of Protocol no. 1 of the European Convention on Human Rights, stating, inter alia, that the Appellate Panel rejected his request for supplementation of the Judgment through point (V) of the Judgment, without considering or reeasoning his allegation submitted through specification of the claim in relation to the compensation for 2(two) parcels, which have already been registered in the name of the S. family, with other parcels in the ownership of the AIC „Kosova Export“.

Considering the Applicant’s allegations for violation of his right to a fair and impartial trial, as a result of the lack of a reasoned court decision, the Court first elaborated and then applied the principles of its case law and of the case law of the European Court of Human Rights. Having assessed the circumstances in this case, the Court emphasized that it was not disputable that 2 (two) of the 4 (four) disputed parcels were owned by two different owners, namely (i) the S. family, according to the Judgemt of Municipal Court, of 2017; and (ii) the Applicant according to the Judgment of Appellate Panel  of 2017, itself. However, despite the Applicant’s specificic claim to have  this issue resolved first through the specification of the claim and then through the request to supplement the judgment, the Appellate Panel did not address this issue either in the Judgment of 2017 or the Judgment of 2019.

On the basis of its consolidated case law relating to the right to a reasoned judgment, the Court has emphasized that, even though the obligation to provide reasons on the relevant parties’ allegations may vary depending on the nature of the case under consideration, the essential parties’ allegations must be resolved and reasoned, therefore, on the basis of the reasoning provided in the Court’s published judgment, in the circumstances of the present case, this was not done.

Accordingly, the Court found that point (V) of the challenged Decision [AC-I-17-0568] of  the Appellate Panel of the Special Chamber of the Supreme Court, of  14 March 2019 was rendered contrary to the procedural guarantees established in Article 31 of the Constitution in conjunction with  Article 6 of the European Convention on Human Rights, and therefore, declared the same null and void, by remanding it for deciding in  accordance with the conclusions of the judgment of the Constitutional Court.