Constitutional Court

KI44/21, Applicant: Besa Sopi; Constitutional review of Judgment [AC-I-20-0091] of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters, of 21 January 2021

KI44/21, Judgment of 1 February 2022, published on 5 April 2022

Keywords: individual referral, absence of hearing,

The circumstances of the present case relate to the privatization of the Socially Owned Enterprise “KBI Suhareka” in the Municipality of Suhareka and the right of the relevant employees to be recognized unpaid personal income from the period before privatization, as established in Annex to Law No. 04/L-033 on the Special Chamber of the Supreme Court and paragraph 4 of Article 10 (Rights of Employees) of Regulation no. 2003/13, amended by Regulation no. 2004/45 on the Transformation of the Right of Use to Socially Owned Immovable Property. The Applicant’s request for payment of personal income realized before the start of the privatization of SOE “KBI Suhareka”, was not approved and consequently, she filed a complaint with the Privatization Agency of Kosovo. Following the rejection of her complaint by the latter, the Applicant filed a claim with the Specialized Panel of the Special Chamber of the Supreme Court, challenging the decision of the Privatization Agency of Kosovo, in terms of establishing the facts and interpreting the applicable law, also claiming that she had been discriminated against. The Specialized Panel rejected the Applicant’s claim. This decision, following the Applicant’s appeal, was approved by the Appellate Panel of the Special Chamber of the Supreme Court. None of the instances of the Special Chamber of the Supreme Court held a public hearing.

The Applicant challenged before the Court the decision of the Appellate Panel, stating that the latter was rendered in violation of Articles: 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 54 [Judicial Protection Rights] of the Constitution of the Republic of Kosovo and Article 1 of Protocol no. 12 (General prohibition of discrimination) of the European Convention on Human Rights. Regarding the violation of the right to a fair trial guaranteed by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights, the Applicant alleged that the Appellate Panel decided in her case (i) without a hearing; and (ii) without determination of factual situation, also violating the principle of general prohibition of discrimination.

In assessing the Applicant’s allegations concerning the absence of a hearing, the Court initially  (i) elaborated on the general principles of its case law and that of the European Court of Human Rights regarding the right to a hearing; and then (ii) applied the latter to the circumstances of the present case. In this regard, the Court clarified the key principles regarding (i) the right to a hearing before the first instance courts; (ii) the right to a hearing before the courts of second and third instance; (iii) the principles on the basis of which it must be established whether a hearing is necessary; and (iv) if there is no hearing in the first instance, can it be corrected by holding a hearing in a higher instance and the relevant criteria for making this assessment. In addition, the Court specifically examined and applied its case law, as well as the case law of the European Court of Human Rights, on the basis of which it is assessed whether the absence of a request for a hearing can be considered an implicit waiver of party, from that right.

On the basis of these principles, the Court found that the challenged Judgment [AC-I-20-0091] of 21 January 2021 was rendered contrary to the guarantees embodied in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, in terms of the right to a hearing, inter alia, on the grounds that (i) the fact that the Applicant did not request a hearing before the Specialized Panel and the Appellate Panel does not imply her waiver of this right nor does it exempt the Specialized Panel and Appellate Panel from the obligation to address on its own initiative the necessity of holding a hearing; (ii) the Applicant was denied the right to a two-level hearing by the Special Chamber of the Supreme Court; (iii) The Appellate Panel did not deal with “exclusively legal or highly technical matters”, the issues on the basis of which “extraordinary circumstances that could justify the absence of a hearing” could have existed, but on the contrary “issues of fact and law”, the assessment of which, based on the case law of the Court and of the European Court of Human Rights, includes the necessity of holding a hearing at least at one level of jurisdiction; and (iv) the Appellate Panel did not reason “the waiver from the hearing”.

Finally, based on the explanations given in the published Judgment, the Court found that the challenged Judgment of the Appellate Panel 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, due to the absence of a hearing, remanding the case for retrial.