Judgment
Prishtina, on 10 October 2024
Ref. No.: AGJ 2562/24
This translation is unofficial and serves for informational purposes only.
JUDGMENT
in
Case No. KI84/22
Applicant
Slavica Đorđević
Constitutional review of Decision Rev. No. 170/2021 of the Supreme Court of Kosovo, of 19 October 2021
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KOSOVO
composed of:
Gresa Caka-Nimani, President
Bajram Ljatifi, Deputy President
Selvete Gërxhaliu-Krasniqi, Judge
Safet Hoxha, Judge
Radomir Laban, Judge
Remzije Istrefi-Peci, Judge
Nexhmi Rexhepi, Judge
Enver Peci, Judge, and
Jeton Bytyqi, Judge
Applicant
The Referral was submitted by Slavica Đorđević from Prizren, residing in Nish, represented by Vasilije Arsić, a lawyer from Graçanica (hereinafter: the Applicant).
Challenged decision
The Applicant challenges the Decision [Rev. No. 170/2016] of 19 October 2021 of the Supreme Court of Kosovo (hereinafter: the Supreme Court) in conjunction with the Decision [Ac. No. 3165/2020] of 2 October 2020 of the Court of Appeals of Kosovo (hereinafter: the Court of Appeals) and Decision [C. No. 1370/19] of 13 February 2020.
The Applicant received the challenged Judgment on 25 February 2022.
Subject matter
The subject matter of the Referral is the constitutional review of the challenged Decision, which allegedly violates the Applicant’s rights guaranteed by Articles 31 [Right to Fair and Impartial Trial], 54 [Judicial Protection of Rights] and 102 [General Principles of the Judicial System] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution), as well as Articles 6 (Right to a fair trial) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (hereinafter: the ECHR).
Legal basis
The Referral is based on paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 47 [Processing Referrals] of Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo (hereinafter: the Law) and Rule 25 (Filing of Referrals and Replies) of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo (hereinafter: the Rules of Procedure).
On 7 July 2023, the Rules of Procedure of the Constitutional Court of the Republic of Kosovo No. 01/2023, were published in the Official Gazette of the Republic of Kosovo and entered into force fifteen (15) days after their publication. Consequently, during the examination of the Referral, the Constitutional Court refers to the provisions of the aforementioned Rules of Procedure. In this regard, in accordance with Rule 78 (Transitional Provisions) of the Rules of Procedure No. 01/2023, exceptionally, certain provisions of the Rules of Procedure No. 01/2018, will continue to be applied in cases registered in the Court before its abrogation, only if and to the extent that they are more favourable for the parties.
Proceedings before the Constitutional Court
On 16 June 2022, the Applicant submitted her Referral by mail service to the Constitutional Court of the Republic of Kosovo (hereinafter: the Court).
On 23 October 2022, the President of the Court by Decision [No. GJR. KI84/22] appointed Judge Bajram Ljatifi Judge Rapporteur and the Review Panel, by Decision [No. KSH. KI84/22], composed of judges: Gresa Caka-Nimani (Presiding), Radomir Laban and Remzije Istrefi-Peci (members).
On 25 July 2022, the Court notified the Applicants of the registration of the Referral.
On 25 September 2022, the Court notified the Supreme Court of the registration of the Referral and provided a copy of the Referral.
On 9 December 2022, the Court notified the Basic Court of the registration of the Referral and requested to inform the Court as to when the Applicant received the challenged decision.
On 14 December 2022, the Basic Court informed the Court about the requested information.
On 16 December 2022, Judge Enver Peci took the oath before the President of the Republic of Kosovo, thereby commencing his mandate at the Court.
On 19 December 2022, the Court requested the Basic Court to submit the full case file.
On 30 December 2022, the Basic Court submited the case file to the Court.
On 7 March 2023, the Review Panel considered the report of the Judge Rapporteur and requested its supplementation.
On 24 January 2024, the Review Panel considered the report of the Judge Rapporteur and requested its supplementation.
On 11 March 2024, Judge Jeton Bytyqi took the oath before the President of the Republic of Kosovo, thereby commencing his mandate at the Court.
On 19 March 2024, the Review Panel considered the report of the Judge Rapporteur and requested its supplementation.
On 11 September 2024, the Review Panel reviewed the report of the Judge Rapporteur and unanimously recommended to the Court the admissibility of the Referral.
On the same date, the Court unanimously held that: (i) the Referral is admissible; and (ii) Decision [Rev. Nr. 170/2021] of the Supreme Court, 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 ECHR.
Summary of facts
The Court initially clarifies that the Applicant was also a party before the Court in case KI86/18, Judgment of 8 March 2021. In that case, the Court had found that there are two final decisions, namely the Decision of the Housing and Property Claims Commission of 30 April 2005, regarding the right to use the property that was the subject of dispute, and Judgment [P. no.462/10] of the Municipal Court of 21 December 2011, which became final on 19 May 2012, whereby it ordered the Respondent B.M. to vacate the usurped property and restore it to its previous condition by removing all the works he had carried out on the said property. Therefore, the Court had found that the non-enforcement of the Decision of the Housing and Property Claims Commission of 30 April 2005 and the Judgment [P. no.462/10] of the Municipal Court of 21 December 2011, as well as the suspension of the latter in enforcement proceedings by the Basic Court in Prizren by closing the enforcement procedure, in the case of the Applicant, constituted a violation of Article 31 of the Constitution in conjunction with Article 6.1 of the European Convention on Human Rights (ECHR).
The Court also had found that the inability to undertake further legal actions for the enforcement of the aforementioned decisions also constitutes a violation of Articles 32 and 54 of the Constitution and Article 13 of the ECHR. Moreover, the Court had also found that as a result of non-enforcement of the final and binding decision, the Applicant was unjustly deprived of her property. In this way, the Applicant’s right to peacefully enjoy her property was violated, as guaranteed by Article 46 of the Constitution, and Article 1 of Protocol No. 1 of the ECHR.
On 8 March 2024, the Court published the Decision on Non-Enforcement regarding the Judgment of the Constitutional Court of the Republic of Kosovo, of 3 February 2021, in case KI86/18.
The Court found that the Judgment of the Court in case KI86/18 has not been confirmed to have been fully implemented by the responsible authorities of the Republic of Kosovo, in accordance with Article 116 of the Constitution and Rule 60 of the Rules of Procedure, therefore, the Court issued Decision on Non-enforcement regarding the Court’s case KI86/18. At the same time, the Court also notified the State Prosecutor regarding the non-implementation of its Judgment in case KI86/18.
Facts of the case in relation to Referral KI84/22
In connection with the circumstances of case KI86/18, on 2 September 2019, the Applicant filed a lawsuit against the Respondent—Interested Party F.M. with the Basic Court in Prizren for damage compensation in the amount of 334,250 (three hundred thirty-four thousand) euros, as well as a proposal for imposing a security measure. The Applicant submitted her lawsuit in the Serbian language.
On 4 September 2019, the Basic Court through Decision [C.no.1370/2019]: (I) invited the Applicant, within a period of three days from the date of receipt of this Decision, to pay the court fee in the amount of 1,000 (one thousand) euros, prescribed for the filed lawsuit, and to submit to the court a copy of the receipt for the paid fee; (II) In case the Applicant does not pay the prescribed court fee within the aforementioned period, even after the court’s warning, it will be considered that the lawsuit has been withdrawn. The same Decision was also issued in the Serbian language.
On 12 September 2019, the Applicant submitted an objection to the aforementioned Decision, requesting to be exempted from paying the court fee due to her poor economic condition, and specifying that the three-day deadline for payment of the court fee did not exist in any provision of the Law on Contested Procedure.
On 15 October 2019, the Basic Court through Decision [C.no.1370/2019] rejected the request for exemption from paying the court fee and procedural expenses, as unfounded. The same Decision was also issued in the Serbian language.
On 7 November 2019, the Applicant filed an appeal against the aforementioned Decision, due to essential violations of the provisions of the contested procedure, erroneous and incomplete verification of the factual situation, and erroneous application of substantive law, proposing that the appeal be approved as well-founded.
On 9 December 2019, the Court of Appeals through Decision [Ac.no.6002/19] rejected the Applicant's appeal as unfounded, and upheld Decision [C.no.1370/2019] of 15 October 2019 of the Basic Court. The same Decision was also issued in the Serbian language.
On 13 February 2020, the Basic Court through Decision [C.no.1370/2019] considered the Applicant's lawsuit regarding this contentious matter as withdrawn. The same Decision was also issued in the Serbian language.
On 4 March 2020, the Applicant filed an appeal against the aforementioned Decision, due to essential violations of the provisions of the contested procedure, erroneous and incomplete verification of the factual situation, and erroneous application of substantive law, proposing that the appeal be approved as well-founded.
On 2 October 2020, the Court of Appeals through Decision [Ac.no.3165/20] rejected the Applicant’s appeal as unfounded and upheld Decision [C.no.1370/19] of 13 February 2020 of the Basic Court. This Decision in the Albanian language was delivered to the Applicant by the Court of Appeals on 21 October 2020.
On 28 October 2020, in the case files that the Applicant brought to the Court, it is noted that she, through her representative, had submitted a submission to the Court of Appeals and requested that the aforementioned Decision be translated into the Serbian language and delivered to the authorized representatives due to the lack of knowledge and understanding of the Albanian language. Among other things, in the submission filed by the Applicant, she refers to the provisions of paragraph 1 of Article 2 and paragraph 1 of Article 3 of Law No. 02/L-37 on the Use of Languages, emphasizing that the Albanian and Serbian languages, as well as their scripts, are in official use in Kosovo, and have equal status in all institutions, therefore, they request to receive the aforementioned Decision in the Serbian language, after which they would be able to act accordingly.
On 15 January 2021, from the complete case file, through the acknowledgment of receipt (clarification: document p. 147 of the complete case file), it is evidenced that the Applicant had received the aforementioned Decision of the Court of Appeals translated into the Serbian language.
On 2 February 2021, after receiving Decision [Ac.no.3165/20] in the Serbian language version, the Applicant filed a request for revision against the aforementioned Decision: (i) due to essential violations of the provisions of the contested procedure; and (ii) erroneous application of substantive law, proposing that the Supreme Court approve the revision and modify both decisions of the lower instance courts, so that her appeal is approved and the case is remanded for decision-making based on merits to the first instance court.
On 16 February 2021, the Interested Party F.M. submitted a response to the revision, proposing that the Applicant's request for revision be dismissed as inadmissible or rejected as unfounded.
On 19 October 2021, the Supreme Court through Decision [Rev.no.170/2021] dismissed the Applicant's revision against the aforementioned Decision of the Court of Appeals as out of time. In the reasoning of its Decision, the Supreme Court clarified as follows:
“The provision of Article 211.1 states that the parties may file a revision within a period of thirty (30) days from the day the judgment was served upon them. On the other hand, Article 127.2 of the same law prescribes that: If the submission is sent by mail with registered letter or by telegraphic means, the day of submission to the post office is considered as the day of submission to the court to which it is addressed. When a submission is sent by post, registered mail or telegram, the date of mailing or sending it shall be considered as the date of the service on the court to which it has been sent.
From the case files, it appears that the authorized representative of the claimant received the second instance decision Ac. no. 3165/2020 dated 02.10.2020 on 21.10.2019, as evidenced by the delivery note found in the case files, while the revision against that decision was submitted to the court on 02.02.2020, as evidenced by the postal registered letter no. 1460189. According to Article 107 of the LCP, which states that when a party is represented by its legal representative or attorney, the document is delivered to the legal representative or the attorney. Based on the case files, it is established that the legal representative of the claimant received the decision Ac. no. 3165/2020 dated 02.10.2020 on 21.10.2019.”
On 20 April 2022, the Applicant submitted an objection against the aforementioned Decision of the Supreme Court, claiming that the contested decision, besides containing factual errors, states that Decision [Ac.no.3165/2020] of 2 October 2020 of the Court of Appeals was received in the Serbian language on 15 January 2021, while she had submitted the Revision on 2 February 2021, within the 30 (thirty) day deadline from the date of receipt of the Decision in the Serbian language.
On 18 July 2022, the Supreme Court through Decision [Rev.170/2021] dismissed the objection of the Applicant submitted against Decision [Rev.170/2021] of 19 October 2021 of the Supreme Court as inadmissible. In the reasoning of this Decision, the Supreme Court reasoned as follows:
“[…], while the Supreme Court has found that the authorized representative of the claimant received the second instance judgment on 21.10.2020, while the revision was submitted on 2.2.2020 [emphasis added: should be 2021] after the legal deadline.
Moreover, the Supreme Court of Kosovo reiterates the fact that the authorized representative of the claimant, Attorney Vlastimir Petrovic, according to the Free Legal Aid project, financed by the European Community project, received the judgment of the Court of Appeals on 21.10.2020, while the revision was submitted on 2.2.2021, therefore, the Supreme Court of Kosovo maintains its legal position that the claimant's revision is out of time, as it decided in its Decision Rev.170/2021 dated 19/10/2021. It is also worth mentioning the fact that in the case files there is no evidence that the Free Legal Aid project representing the claimant refused to accept the second instance Decision or submitted a request for translation, even though this is claimed by the authorized representative of the claimant.
Therefore, the claim of the authorized representative of the claimant that he received the judgment of the Court of Appeals of Kosovo Ac.no.3165/2020 dated 2.10.2020 on 15.1.2021 and that he submitted the revision against this Judgment on 2.2.2021, does not stand.”
Applicant’s allegations
The Applicant challenges the challenged decision, claiming that it was rendered in violation of her fundamental rights and freedoms guaranteed by Articles 31 [Right to Fair and Impartial Trial], 54 [Judicial Protection of Rights], and 102 [General Principles of the Judicial System] of the Constitution, as well as Article 6 (Right to a fair trial) and Article 14 (Prohibition of discrimination) of the ECHR.
In this regard, the Applicant alleges that the decision of the Supreme Court, which considers the submitted revision as out of time, is contrary to the Constitution, namely Article 31 thereof in conjunction with Article 6 of the ECHR, the Law on Contested Procedure, and the Law on the Use of Languages.
The Applicant emphasizes that on 21 October 2020, she received the decision of the Court of Appeals in the Albanian language, and that according to her they immediately requested the translation of the Decision of the Court of Appeals into the Serbian language. In this context, the Applicant states that she received the Decision of the Court of Appeals on 15 January 2021, while the revision was submitted to the Supreme Court on 2 February 2021. Consequently, the Applicant claims that the Supreme Court should have calculated the deadline from 15 January 2021 (when the Decision was served upon in the Serbian language) and not from 21 October 2020 (the date when the Decision was served upon in the Albanian language).
The Applicant further states that such an action by the Supreme Court “gravely violates the principle of legal certainty, because in this way, parties who do not understand the Albanian language are put into erroneous belief, expecting such a decision to be served upon them in the official languages used in court, namely in the Serbian language for persons of Serbian ethnicity, in this specific case in the Serbian language, and then the court considers that the deadline for submitting the legal remedy has expired from the day the decision was served upon in a language that the party does not understand.”
Furthermore, the Applicant states that the provisions of the Constitution, the Law on Contested Procedure, and the Law on the Use of Languages equate the Albanian and Serbian languages as official languages. In this regard, Law No. 02/L-37 on the Use of Languages in Article 14 provides: “Courts have a duty to issue documents related to proceedings in the official language(s) chosen for the proceedings and in other official languages if requested by any party to the proceedings or if in the view of the court so doing would serve the general public interest.”
Subsequently, the Applicant refers to the case Brozicek v. Italy, wherein, according to the Applicant, the ECtHR found a violation of Article 6 paragraph 3(a) of the ECHR. The Applicant furhter mentions the case of Kamasinski v. Austria, where the ECtHR emphasized that Article 6 paragraph 3(e) “relates to free assistance of an interpreter not only for oral statements made during hearings but also for documents and other written materials, including in preliminary proceedings.”
The Applicant further stated that “the Supreme Court has never considered or examined the evidence in the case file, which clearly show that the initial serving of the Decision in case AC. No. 3165/20 was irregular for the party in the proceedings, namely the Decision was served only in the Albanian language, but not the translation of the decision into the Serbian language. Also, in the case file, there is a submission in which the Applicant’s authorized representative addresses the Court of Appeals and requests the translation of the decision into the Serbian language.”
In this way, the Applicant considers that “the Supreme Court has violated Article 31 of the Constitution in conjunction with Article 6, Article 1 of Protocol No. 1, Article 13, and Article 14 of the ECHR, because it did not previously examine all the documents, therefore it did not calculate the deadlines in accordance with the applicable legal provisions, but partially examined the documents, and thus considered the revision as out of time. In this way, the court made a fundamental error in the proper calculation of the deadline, and this error had a substantial effect during the decision-making process, thereby violating the claimant’s right to a fair trial and examination of the claim.”
Finally, the Applicant requests from the Court to “hold that there has been a violation of the aforementioned provisions, proposing that the Supreme Court annul the decision Rev.no.170/2021 dated 19.10.2021 and order the Supreme Court to reconsider the revision procedure of the Applicant.”
Relevant constitutional and legal provisions
Constitution of the Republic of Kosovo
Article 5 [Languages]
1. The official languages in the Republic of Kosovo are Albanian and Serbian.
2. Turkish, Bosnian and Roma languages have the status of official languages at the municipal level or will be in official use at all levels as provided by law.
Article 24 [Equality Before the Law]
1. All are equal before the law. Everyone enjoys the right to equal legal protection without discrimination.
2. No one shall be discriminated against on grounds of race, color, gender, language, religion, political or other opinion, national or social origin, relation to any community, property, economic and social condition, sexual orientation, birth, disability or other personal status.
3. Principles of equal legal protection shall not prevent the imposition of measures necessary to protect and advance the rights of individuals and groups who are in unequal positions. Such measures shall be applied only until the purposes for which they are imposed have been fulfilled.
Article 31 [Right to Fair and Impartial Trial]
1. Everyone shall be guaranteed equal protection of rights in the proceedings before courts, other state authorities and holders of public powers.
2. Everyone is entitled to a fair and impartial public hearing as to the determination of one’s rights and obligations or as to any criminal charges within a reasonable time by an independent and impartial tribunal established by law.
3. Trials shall be open to the public except in limited circumstances in which the court determines that in the interest of justice the public or the media should be excluded because their presence would endanger public order, national security, the interests of minors or the privacy of parties in the process in accordance with law.
4. Everyone charged with a criminal offense has the right to examine witnesses and to obtain the obligatory attendance of witnesses, experts and other persons who may clarify the evidence.
5. Everyone charged with a criminal offense is presumed innocent until proven guilty according to law.
6. Free legal assistance shall be provided to those without sufficient financial means if such assistance is necessary to ensure effective access to justice.
7. Judicial proceedings involving minors shall be regulated by law respecting special rules and procedures for juveniles.
Article 102 [General Principles of the Judicial System]
1. Judicial power in the Republic of Kosovo is exercised by the courts.
2. The judicial power is unique, independent, fair, apolitical and impartial and ensures equal access to the courts.
3. Courts shall adjudicate based on the Constitution and the law.
4. Judges shall be independent and impartial in exercising their functions.
5. The right to appeal a judicial decision is guaranteed unless otherwise provided by law. The right to extraordinary legal remedies is regulated by law. The law may allow the right to refer a case directly to the Supreme Court, in which case there would be no right of appeal.
European Convention on Human Rights
Article 6
Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Article 13
Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Article 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
LAW No. 02/L-37 ON THE USE LANGUAGES
Article 2
2.1. Albanian and Serbian and their alphabets are official languages of Kosovo and have equal status in Kosovo institutions.
2.2. All persons have equal rights with regard to use of the official languages in Kosovo institutions
Article 3
3.1. Every person shall have the right to freedom of expression. This right shall include freedom to receive, seek and impart information and ideas in the language of one’s choice without interference. Free receiving of the cross-boarder broadcasting, whether directly or through the repeated broadcasting or retransmission is not prohibited on the basis of language. The exercise of this freedom may be subject to such limitations as are compatible with binding international human rights treaties.
3.2. Every person has the right of equality before the law and of equal protection of the law. Any discrimination based on the grounds of language shall be prohibited.
Use of Languages in Judicial Proceedings
Article 12
12.1. Official languages shall be used on an equal basis in judicial proceedings.
12.2. Courts and prosecution bodies, as well as other authorities involved in a criminal procedure, shall, in any proceedings before them, ensure that any person participating in criminal or any other judicial proceedings may use the official language of his or her choice.
Article 14
Courts have a duty to issue documents related to proceedings in the official language(s) chosen for the proceedings and in other official languages if so requested by any party to proceedings or if in the view of the court so doing would serve the general public interest.
LAW No. 03/L-006 ON CONTESTED PROCEDURE
Article 6
6.1 The contentious procedure proceeds in any of the official languages of the court.
6.2 The parties and other participants in the procedure that do not understand or speak the official language of the court shall have the right to speak his or her language or the language that he or she understands.
CHAPTER VI
THE LANGUAGE IN THE PROCEDURE
Article 96
96.1 The party and other participants in the procedure have the right to speak in front of the court their own language or the language they understand.
96.2 If the procedure is not conducted in the language of the party or other participants in the procedure, upon their request shall be provided verbal interpretation into their language or language they understand of all submissions and evidences and of all that is submitted in the court session.
96.3 The parties and other participants in the procedure shall be informed about the right to follow the verbal proceeding in their language through the interpreter. They may waive from the right to interpreter if they declare that understand the language in which is proceeded. The minutes will record that they were instructed about the right to use their language and the statements of parties and other participants about the instructions provided by the court.
96.4 Interpretation is conducted through the interpreter.
96.5 The cost of interpretation is at the expense of the court budget.
Article 97
Calling letters, decisions and other court documents are sent to parties in the official language of the court.
Article 98
The parties and other participants in the procedure shall send claims, appeals and submissions in the official.
Admissibility of the Referral
The Court first examines whether the Applicant has fulfilled the admissibility requirements established in the Constitution and further specified in the Law and the Rules of Procedure.
In this respect, the Court initially refers to paragraphs 1 and 7, of Article 113 [Jurisdiction and Authorized Parties] of the Constitution which establish:
“1. The Constitutional Court decides only on matters referred to the court in a legal manner by authorized parties.
[…]
7. Individuals are authorized to refer violations by public authorities of their individual rights and freedoms guaranteed by the Constitution, but only after exhaustion of all legal remedies provided by law.”
The Court also assesses whether the Applicant has met the admissibility criteria, as further specified in the Law. In this regard, the Court first refers to Articles 47 (Individual Requests), 48 (Accuracy of the Referral) and 49 (Deadlines) of the Law, which stipulate:
Article 47
(Individual Requests)
“1. Every individual is entitled to request from the Constitutional Court legal protection when he considers that his/her individual rights and freedoms guaranteed by the Constitution are violated by a public authority.
2. The individual may submit the referral in question only after he/she has exhausted all the legal remedies provided by the law.”
Article 48
(Accuracy of the Referral)
“In his/her referral, the claimant should accurately clarify what rights and freedoms he/she claims to have been violated and what concrete act of public authority is subject to challenge”.
Article 49
(Deadlines)
“The referral should be submitted within a period of four (4) months. The deadline shall be counted
from the day upon which the claimant has been served with a court decision ... ”.
Subsequently, as to the fulfillment of the above-mentioned requirements, the Court finds that the Applicant is an authorized party, who challenges an act of a public authority, namely Decision [Rev. No. 170/2021] of the Supreme Court, of 19 October 2021, after exhausting all legal remedies provided by law. The Applicant has also clarified the rights and freedoms she claims to have been violated in accordance with the criteria of Article 48 of the Law and have submitted the Referral in accordance with the deadline set out in Article 49 of the Law.
Following the review of the constitutional complaint of the Applicants, the Court considers that the Referral cannot be considered manifestly ill-founded on constitutional grounds, as provided by paragraph (2) of Rule 34 of the Rules of Procedures (see also the ECtHR case, Alimuçaj v. Albania, no. 20134/05, Judgment of 9 July 2012, paragraph 144, and also see the Court case KI27/20, Applicant Lëvizja VETËVENDOSJE!, Judgment of 22 July 2020, paragraph 43).
The Court also finds that the Applicant’s Referral meets the admissibility criteria set out in paragraph (1) of Rule 34 of the Rules of Procedure. The same cannot be declared inadmissible on the basis of the criteria set out in paragraph (2) and (3) of Rule 34 of the Rules of Procedure. Consequently, the Court considered that the Referral must be declared admissible and its merits examined.
Merits of the Referral
The Court recalls that the Applicant alleges that her fundamental rights and freedoms guaranteed by Articles 31 [Right to Fair and Impartial Trial], 54 [Judicial Protection of Rights], and 102 [General Principles of the Judicial System] of the Constitution, as well as Article 6 (Right to a fair trial) and Article 14 (Prohibition of discrimination) of the ECHR, have been violated.
Therefore, the Court initially recalls that the circumstances of the case are related to the Applicant’s request, within judicial proceedings, to be exempted from paying the court fee in the amount of one thousand (1,000) euros, prescribed for the filed lawsuit, whereby she sought compensation for damages and had a proposal for imposing a security measure on the respective contested property, and regarding which the Constitutional Court had issued Judgment KI86/18 in 2021. The Basic Court had rejected the Applicant’s request for exemption from paying the court fee and procedural expenses as unfounded. After the appeal submitted by the Applicant, the Court of Appeals also rejected the Applicant’s appeal as unfounded and upheld the Decision of the Basic Court. 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 aforementioned decision of the Court of Appeals, in the Albanian language, was served on the Applicant on 21 October 2020. Through a submission, the Applicant requested from the Court of Appeals that the said decision be served on her in the Serbian language, due to the lack of understanding of the Albanian language. From the complete case file, it is evidenced that on 15 January 2021, the Applicant received the Decision of the Court of Appeals translated into the Serbian language. Subsequently, the Applicant’s request for revision submitted on 2 February 2021 was dismissed as out of time by the Supreme Court, explaining that the Applicant had received the Decision of the Court of Appeals on 21 October 2020, while she had submitted the revision on 2 February 2021. Subsequently, the Applicant submitted an objection to the Supreme Court, emphasizing that she had received the Decision of the Court of Appeals in the Serbian language on 15 January 2021 and that calculated from this date, she had submitted the request for revision within the legally prescribed deadline. The Supreme Court ultimately dismissed the Applicant’s objection as inadmissible, emphasizing that the Applicant had submitted the revision after the legal deadline and furthermore, in the case file, there is no evidence that the Applicant refused to receive the Decision of the Court of Appeals or that she submitted a request for translation.
Based on the above elaboration of the case, the Court considers that the Applicant’s allegations should be examined from the perspective of the denial of access to justice as guaranteed by Article 31 of the Constitution and Article 6(1) of the ECHR, starting from the fact that the regular courts did not examine on the merits the Applicant’s request for revision, in the context of the flow of the deadline for submitting the request for revision from the moment when the Applicant had received the Decision of the Court of Appeals in the language chosen for use in judicial proceedings.
The Court notes that the right to a fair and impartial trial is guaranteed by Article 31 of the Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR, and its application has been interpreted by the European Court of Human Rights (ECtHR). In this regard, based on Article 53 [Interpretation of Human Rights Provisions] of the Constitution, the Court has a constitutional obligation to interpret fundamental rights and freedoms in accordance with the case law of the ECtHR.
Consequently, regarding the interpretation of the allegations for violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, the Court will refer to the general principles of access to a court from the consolidated case law of the ECtHR and the Court.
General principles regarding the right of “access to a court”, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR and the relevant case law
General Principals
Regarding the right of “access to a court”, a right guaranteed by paragraph 1 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of the ECHR, the Court initiallz emphasizes that it already has a case law built upon the principles established through the case law of the ECtHR (including but not limited to the cases of Golder v. the United Kingdom, Judgment of 21 February 1975; Běleš and Others v. the Czech Republic, no. 47273/99, Judgment of 12 November 2002; Miragall Escolano and Others v. Spain, Judgment of 25 January 2000; and Naït-Liman v. Switzerland, Judgment of 15 March 2018). That said, the cases through which the Court has affirmed the principles established by the ECtHR and has applied the same in cases under its review include but are not limited to cases KI62/17,Applicant Emine Simnica [Judgment of 29 May 2018]; KI224/19, Applicant Islam Krasniqi [Judgment of 10 December 2020]; KI20/21, Applicant Violeta Todorović [Judgment of 13 April 2021]; KI54/21, Applicant Kamber Hoxha [Judgment of 2021 November 2021]; KI10/22, Applicant Trade Union of the Institute of Forensic Medicine [Judgment of 15 August 2022].
In this context, the Court recalls that the right of access to court for the purposes of Article 6 of the ECHR is defined in case Golder v. the United Kingdom. (See ECtHR case, Golder v. the United Kingdom, no. 4451/70, Judgment of 21 February 1975, paragraphs 28-36). Referring to the principle of the rule of law and the avoidance of arbitrary power, the ECtHR found that the “right of access to court” is an essential aspect of the procedural guarantees enshrined in Article 6 of the ECHR. (Regarding the general principles of right to a court, see also ECtHR case Zubac v. Croatia, no. 40160/12, Judgment of 5 April 2018, paragraph 76). Moreover, according to the ECtHR, this right provides everyone with the right to address respective issue related to “civil rights and obligations” before a court. (See ECtHR case, Lupeni Greek Catholic Parish and Others v. Romania, Judgment of 29 November 2016, paragraph 84 and references therein).
The Court in this regard notes that the right to a court, as an integral part of the right to a fair and impartial trial, as guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR, provides that all litigants should have an effective judicial remedy enabling them to assert their civil rights (See cases of the ECtHR, Běleš and Others v. the Czech Republic, Judgment of 12 November 2002, paragraph 49; and Naït-Liman v. Switzerland, Judgment of 15 March 2018, paragraph 112).
According to the ECtHR case law, there must first be “a civil right”, and second a ”dispute” as to the legality of an interference that affects the very existence or scope of “a civil right” protected. The definition of both of these concepts should be substantial and informal. (See, inter alia, the cases of ECtHR Le Compte, Van Leuvenand De Meyere v. Belgium, no. 6878/75; 7238/75, Judgment of 23 June 1981, paragraph 45; Moreira de Azevedo v. Portugal, no. 11296/84, Judgment of 23 October 1990, paragraph 66; Gorou v. Greece ( no. 2), no. 12686/03, Judgment of 20 March 2009, paragraph 29; and Boulois v. Luxembourg, no. 37575/04, Judgment of 3 April 2012, paragraph 92). The “dispute”, however, based on the ECtHR case law, must be (i) “genuine and serious” (see, in this context, the ECtHR cases Sporrong and Lönnroth v. Sweden, no. 7151/75; 7152/75, Judgment of 23 September 1982, paragraph 81 and Cipolletta v. Italy, no. 38259/09, Judgment of 11 January 2018, paragraph 31); and (ii) the outcome of the proceedings before the courts must be “decisive” for the civil right in question. (See, in this context, the case of the ECtHR, Ulyanov v. Ukraine, no. 16472/04, Decision of 5 October 2010). According to the ECtHR case law, the “tenuous links” or “remote consequences” between the civil right in question and the outcome of these proceedings are not sufficient to fall within the scope of Article 6 of the ECHR. (See, in this context, ECHR cases, Lovrić v. Croatia, no. 38458/15 Judgment of 4 April 2017, paragraph 51 and Lupeni Greek Catholic Parish and Others v. Romania, cited above, paragraph 71 and references therein).
Moreover, according to the ECtHR case law, the ECHR does not aim at guaranteeing the rights that are “theoretical and false”, but the rights that are “practical and effective”. (see, for more on “practical and effective” rights, ECtHR Guide of 31 December 2018 to Article 6 of the ECHR, The Right to Fair and Impartial Trial, Civil Aspects, Part II. Right to Court, A. Right and Access to Court, 1. A practical and effective right; and the ECHR cases Kutić v. Croatia, cited above, paragraph 25 and the references cited therein; and Lupeni Greek Catholic Parish and Others v. Romania, Judgment of 29 November 2016, paragraph 86 and references therein).
Therefore, within the meaning of these rights, Article 31 of the Constitution in conjunction with Article 6 of the ECHR, guarantee not only the right to institute proceedings but also the right to obtain a determination of the “dispute” by a court. (See ECHR cases, Kutić v. Croatia, cited above, paragraphs 25-32; Lupeni Greek Catholic Parish and Others v. Romania, cited above, paragraph 86 and references therein; Aćimović v. Croatia, Judgment of 9 October 2003, paragraph 41; and Beneficio Cappella Paolini v. San Marino, no. 40786/90, Judgment of 13 July 2004, paragraph 29).
The aforementioned principles, however, do not imply that the right to a court and the right of access to court are absolute rights. They may be subject to limitations, which are clearly defined by the case law of the ECtHR. However, these limitations cannot go so far as to restrict an individual’s access in such a way that the very essence of the right is impaired (see, in this context, the ECtHR case Baka v. Hungary, no. 20261/12, Judgment of 23 June 2016, paragraph 120; and Lupeni Greek Catholic Parish and others v. Rumania, cited above, paragraph 89 and references therein). Whenever access to court is limited by law or relevant case law, the Court examines whether the limitation affects the essence of the right and, in particular, whether this limitation pursued a “legitimate aim” and whether there exists “a reasonable relationship of proportionality between the means employed and the aim sought to be achieved” (see the Court’s cases KI54/21, Applicant Kamber Hoxha, cited above, paragraph 63; and KI20/21, Applicant Violeta Todorović, cited above, paragraph 44; see also the ECtHR cases Ashingdane v. the United Kingdom, no. 8225/78, Judgment of 28 May 1985, paragraph 57; Lupeni Greek Catholic Parish v. Romania, cited above, paragraph 89; Naït-Liman v. Switzerland, cited above, paragraph 115; Fayed v. the United Kingdom, no. 17101/90, Judgment of 21 September 1994, paragraph 65; and Marković and Others v. Italy, no. 1398/03, Judgment of 14 December 2006, paragraph 99).
Application of general principles to the circumstances of the present case
The Court recalls that the Applicant’s fundamental allegations concern the failure of the regular courts to provide adequate judicial protection, as a result of not examining on the merits the request for revision related to the request for exemption from paying the court fee of 1,000 (one thousand) euros. Therefore, the essence of the matter relates to the principle of access to court in the context of the flow of the deadline for submitting the request for revision, from the moment when the Applicant received the decision of the Court of Appeals in her language, since based on Article 96 of the LCP, the language chosen for use in judicial proceedings was the Applicant’s language, namely Serbian. Thus, while the Decision [Ac.no. 3165/20] of the Court of Appeals was served on the Applicant on 21 October 2020 in the Albanian language, the Applicant, on 28 October 2020, invoking the provisions of the Law on the Use of Languages, requested that the decision be served on her in the Serbian language, due to the lack of understanding and knowledge of the Albanian language. Since the Decision of the Court of Appeals [Ac.no. 3165/20] translated into the Serbian language was delivered to her on 15 January 2021, the Applicant, on 2 February 2021, submitted a request for revision, which the Supreme Court dismissed as out of time, considering the date of receipt of the decision as 21 October 2020 (the date when the Decision of the Court of Appeals was served on her in the Albanian language).
Regarding the Court’s case law concerning instances where the non-receipt of a decision in official and other languages is alleged, the Court brings attention to its practice in case KI42/18, Applicant Asija Muslija, Decision on Inadmissibility of 24 April 2020.
In the circumstances of case KI42/18, the Court clarified that the Applicant had alleged a violation of Article 5 of the Constitution, due to the non-serving of the Decision of the Court of Appeals in her mother tongue, namely Bosnian. In that case, the Court clarified the constitutional and legal provisions related to the use of a language, that is not an official language in the Republic of Kosovo, in proceedings before the courts.
In this case, the Court had clarified that, in principle, courts conduct proceedings in the official language or in the “official language(s) chosen” by the parties in the respective proceedings. Regarding the latter category, namely the “official language chosen” by the parties to the proceedings, Articles 13 and 14 of the Law on the Use of Languages stipulate that, beyond the self-initiative action of the respective court if it deems it to be in the general public interest, upon the party’s request, the court shall (i) make available facilities for the simultaneous interpretation of proceedings, including evidence given, from one official language into another; and (ii) issue documents related to proceedings in the “official language(s) chosen” for the proceedings.
Furthermore, in case KI42/18, the Court had clarified that the provisions of Articles 6, 96, and 97 of the LCP, regarding the language used in the proceedings, in principle, guarantee the parties to the proceedings (i) the right to use their own language or a language they understand in proceedings before the court; and (ii) the provision of translation into their language or a language they understand of all submissions and documentary evidence, if the party submits such a request. Consequently, the Court emphasized that from this it results that every party has the right to use the chosen language in a judicial proceeding and to receive documents and decisions in that same language, if they have made such a request.
The Court, in the circumstances of case KI42/18, concluded that the Applicant had not chosen the language of the proceedings according to the determinations of Article 96 of the LCP, and that the Applicant’s allegations of violation of Article 5 of the Constitution, in the absence of her request for the use of her language in the proceedings before the Court of Appeals and for receiving the respective decision in her chosen language, are not sufficiently proven and supported and consequently are manifestly ill-founded on constitutional grounds.
In this context, insofar as Article 6 of the ECHR and Article 31 of the Constitution are applicable, in the circumstances of the present case, it remains to be verified whether the Applicant had effective access to court for the purpose of challenging the Decision [Ac.no.3165/20] of the Court of Appeals in the Supreme Court of Kosovo. In the Court’s view, the essence of the matter relates to the principle of access to court in the context of the flow of the deadline for submitting the request for revision, from the moment when the Applicant received the Decision [Ac.no. 3165/20] of the Court of Appeals in her language, chosen for use in the judicial proceedings according to Article 96 of the LCP.
The Court initially notes that the Applicant filed a lawsuit drafted in the Serbian language against F.M. in the Basic Court in Prizren for compensation of damages and that she was obliged to pay the court fee of one thousand (1,000) euros for this type of lawsuit.
In relation to this matter, the Court recalls that after submitting the request for exemption from paying the court fee, the Applicant received responses through Decision [C.no. 1370/2019] of the Basic Court and Decision [Ac.no. 3165/20] of 2 October 2020 of the Court of Appeals.
In this regard, since she had received Decision [Ac.no. 3165/20] of 2 October 2020 of the Court of Appeals in the Albanian language, on 28 October 2020, she had requested that, based on the Law on the Use of Languages, it be translated and served on her in the Serbian language. Consequently, after receiving the translated Decision in the Serbian language on 15 January 2021, she submitted a request for revision to the Supreme Court on 2 February 2021, within the legal deadline of 30 (thirty) days.
In this regard, the Court clarifies that the Applicant, starting from the filing of the lawsuit, receiving the decisions respectively: (i) Decision [C.no.1370/2019] of 4 September 2019 of the Basic Court, whereby she was requested to pay the court fee in the amount of 1,000 (one thousand) euros; (ii) Decision [C.no.1370/2019] of 15 October 2019 of the Basic Court, through which the request for exemption from paying the court fee and procedural expenses was rejected; (iii) Decision [Ac.no.6002/19] of 9 December 2019 of the Court of Appeals, through which her appeal was rejected as unfounded, upholding Decision [C.no.1370/2019] of 15 October 2019 of the Basic Court; are decisions that she received in the Serbian language, based on Article 96 of the LCP regarding the chosen language in the proceedings.
Based on the above elaborations, the Court clarifies that the entire judicial proceedings, based on Article 96 of the LCP, was conducted in the Applicant’s chosen language, with the exception of the final decision-making of the Court of Appeals, and as a consequence, the state, namely the courts of regular jurisdiction, had a positive obligation to serve the decision in the language chosen in the proceedings.
In this regard, the Court recalls that the Applicant, in her request regarding the translation of the Decision [Ac.no. 3165/20] of the Court of Appeals into the Serbian language, referred to the provisions of Law No. 02/L-37 on the Use of Languages. Furthermore, the Court also explains that Article 96 of the Law on Contested Procedure establishes 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, if the party submits such a request. Moreover, its Articles 96, 97, and 98, in principle, guarantee the parties to the proceedings (i) the right to use their own language or a language they understand in proceedings before the court; and (ii) the provision of translation into their language or a language they understand of all submissions and documentary evidence, if the party submits such a request (see in this aspect the relevant elaborations of the provisions of Articles 6, 96, 97, and 98 of the LCP, in the case of the Court KI42/18, Applicant Asija Muslija, cited above, paragraph 98).
Therefore, in the Court’s view, this right is fundamental in ensuring a fair and equal traial, guaranteeing that parties are able to fully participate in judicial proceedings. Furthermore, this provision ensures that parties are not hindered in defending their rights as a result of language barriers, thus protecting the right of access to court and equality before the law.
Therefore, the Court concludes that the Applicant’s conduct in utilizing the opportunities provided by law cannot be questioned, since she, based on Article 96 of the LCP, had chosen the language for use in the judicial proceedings. She had fulfilled the legal obligations to request the translation of the Decision of the Court of Appeals and, after receiving on 15 January 2021 the Decision [Ac.no. 3165/20] of the Court of Appeals translated into the Serbian language, she submitted the request for revision. However, her efforts appear to have been hindered by the interpretation given by the Supreme Court, which considered that the Applicant submitted the revision after the legally prescribed deadline, taking into account 28 October 2020, when the Decision of the Court of Appeals in the Albanian language was served on her, as the date of service of the Decision, and not 15 January 2021 when the Applicant was served with the Serbian language version of the Decision [Ac.no. 3165/20] of the Court of Appeals.
The Court recalls that based on the complete case file, specifically through the acknowledgment of receipt (clarification: see paragraph 36 of the Judgment), it is proved that the Applicant had received the Decision [Ac.no. 3165/20] of the Court of Appeals translated into the Serbian language on 15 January 2021. Consequently, she undertook the subsequent procedural action, namely submitting the request for revision to the Supreme Court, based on this date, resulting in her having submitted it within the legally prescribed deadline of 30 (thirty) days. As a result of the situation created, the Applicant continues to face uncertainty regarding the possibility of examining the merits of her claim for compensation of damages submitted in 2019 (see mutatis mutandis the case of the ECtHR: Laçi v. Albania, no. 28142/17, Judgment of 19 October 2021, paragraph 59).
In the circumstances of the present case, the Court recalls that 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 of the LCP, this court had the obligation to serve the respective decision on the party in the language chosen in the proceedings. Moreover, she had also undertaken the necessary steps by submitting a request for translation of the Decision of the Court of Appeals into the Serbian language. Consequently, she was faced with a lack of access to court, a finding which, in the Court’s view, applies to the circumstances of the present case.
Therefore, the Court holds that, since the Applicant submitted the request for translation of the Decision of the Court of Appeals, she received the translated decision in the Serbian language and, based on this version, submitted the request for revision to the Supreme Court. Consequently, the Applicant’s subsequent request to receive the respective decision in her 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 consider in the circumstances of the case, resulting in the violation of the Applicant’s right of access to court.
Taking into account the above considerations, the Court assesses that they are sufficient to enable the Court to conclude that the failure of the Supreme Court to examine the Applicant’s request for revision, which she had submitted after receiving the Serbian language version, on the one hand, and the lack of assessment by the Supreme Court regarding the Applicant’s suitability for exemption from paying the court fee, on the other hand, has impaired the essence of her right of access to court.
Therefore, considering the circumstances of the case, and especially the fact that this restriction imposed by the Supreme Court was established at an initial stage of the proceedings, bypassing the Applicant’s right to receive the Decision [Ac.no. 3165/20] of the Court of Appeals in the Serbian language as the language chosen in the proceedings and undertaking other procedural steps based on the date of receipt of the Serbian version, the Court considers that it was disproportionate and thus violated the very essence of the right of access to court. Consequently, through the challenged decision, the Supreme Court denied her the right of “access to court” within the meaning of paragraph 1 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of the ECHR.
Finally, the Court clarifies that this Judgment is rendered without prejudicing the decision-making of the Supreme Court regarding the decision for the case in question, in the process of reconsidering the contested act.
In the light of above, the Court finds that the circumstances of the present case disclose a violation of Article 31 of the Constitution in conjunction with Article 6 (1) of the ECHR.
FOR THESE REASONS
The Constitutional Court, pursuant to Articles 113 (1) and (7) and Article 20 of the Law and Rule 48 (1)(b) of the Rules of Procedure, in the session held on 11 September 2024, unanimously,
DECIDES
TO DECLARE the referral admissible;
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 Article 6 (Right to a fair trial) of the European Convention on Human Rights;
TO DECLARE the Decision [Rev.170/2021] of the Supreme Court of Kosovo, of 19 October 2021, invalid.
TO REMAND the Decision [Rev.170/2021] of the Supreme Court of Kosovo, of 19 October 2021, for retrial, in accordance with the Judgment of this Court;
TO ORDER the Supreme Court to notify the Court, in accordance with Rule 60 (5) of the Rules of Procedure, by 18 March 2025, of the measures taken to implement this Judgment;
TO REMAIN seized of the matter, pending compliance with this order;
TO NOTIFY this Judgment to the parties and, in accordance with Article 20.4 of the Law, to publish it in the Official Gazette;
This Judgment is effective as of the date of its publication in the Official Gazette in accordance with paragraph 5 of Article 20 of the Law.
Judge Rapporteur President of the Constitutional Court
Bajram Ljatifi Gresa Caka-Nimani
This translation is unofficial and serves for informational purposes only.
Slavica Đorđević
KI – Individual Referral
Judgment
Violation of constitutional rights
Article 31 - Right to Fair and Impartial Trial
Civil