Constitutional Court

KI84/22, Applicant: Slavica Đorđević, Constitutional review of Decision Rev. No. 170/2021 of the Supreme Court of Kosovo, of 19 October 2021

Key words: individual referral, access to court, right to use official language

The Constitutional Court of the Republic of Kosovo has decided on the Referral KI84/22, whereby the constitutional review of Decision [Rev. no. 170/2021] of the Supreme Court of Kosovo, of 19 October 2021, was requested. The Court, unanimously, decided: (i) to declare the Referral admissible; (ii) Decision [Rev. no. 170/2021] of the Supreme Court of Kosovo, of 19 October 2021, is not in compliance with paragraph 1 of 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; and that (iii) Decision [Rev. no. 170/2021]  of the Supreme Court of Kosovo, of 19 October 2021, be declared invalid and remanded for reconsideration in accordance with the Judgment of the Court.

The Judgment initially explains that the circumstances of the present case relate to the Applicant’s request to (i) be exempted from paying the court fee in the amount of one thousand (1,000) euros, prescribed for the filed lawsuit through which she sought compensation for damages, within the judicial proceedings; and (ii) she had a proposal for the imposition of a security measure on the respective contested property, regarding which the Constitutional Court had issued Judgment KI86/18 in 2021. The Basic Court and the Court of Appeals had rejected the Applicant’s request for exemption from paying the court fee and procedural expenses as unfounded. Throughout these proceedings, based on Article 96 (untitled) of Law No. 03/L-006 on Contested Procedure, the language of the proceedings was the Applicant’s language, namely Serbian. The Applicant’s request for revision to the Supreme Court was rejected as out of time, a decision which the Applicant challenged before the Court, alleging a violation of her rights deriving from 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 the context of access to justice. This is because the request for revision to the Supreme Court (i) was submitted within the deadlines specified by the applicable law from the moment when the relevant Decision of the Court of Appeals was received in the Serbian language; but not (ii) within the deadlines specified by the applicable law from the moment when the relevant Decision was received in the Albanian language, which the Applicant had requested to receive in her own language.

In assessing the Applicant’s allegations, the Court initially elaborated on the principles of its case law and that of the European Court of Human Rights regarding the right of access to court, and then applied the same to the circumstances of the present case. According to the clarifications given in the Judgment, through Article 96 (no title) of Law No. 03/L-006 on Contested Procedure, the fundamental right of parties and other participants to the proceedings to use their mother tongue or a language they understand during the conduct of proceedings before the court is established, if the party submits such a request. In the circumstances of the present case, upon the party’s request, the entire judicial proceeding was conducted in the Applicant’s chosen language, with the exception of the final decision-making of the Court of Appeals, despite the fact that, based on the aforementioned provision, this court had the obligation to serve the respective decision on the party in the language chosen in the proceedings. According to the clarifications given in the Judgment, the Applicant’s subsequent request to receive the respective decision in her own language resulted in consequences regarding the deadlines related to the use of the legal remedy in the Supreme Court, a fact which the latter failed to take into account in the circumstances of the case, resulting in a violation of her right of access to court.

The Court’s Judgment also clarifies that its findings relate solely to the aspect of access to justice in the context of constitutional procedural guarantees and in no way prejudice the Supreme Court’s decision-making on merits during the reconsideration of this case.

This translation is unofficial and serves for informational purposes only.