Constitutional Court

KI01/20, Applicant: Momir Marinković, Constitutional review of Judgment AC-I-17-0074-A123 of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters, of 8 October 2019  

KI01/20, Judgment of 29 July 2021, published on 19 August 2021

Keywords: individual referral, the right to a hearing, waiver of the hearing 

The Court recalls that the circumstances of the present case relate to the privatization of the Socially Owned Enterprise SOE “SHARR” and the rights of the respective employees to be granted the status of employees with legitimate rights to participate in the twenty percent proceeds (20%) from this privatization, as defined in Article 68 of the Annex to the Law on SCSC and paragraph 4 of Article 10 of Regulation 2003/13. The Applicant is one of the former employees of the aforementioned enterprise, who was not included in the Final List published on 7, 8 and 9 June 2012. His appeal to the Specialized Panel was rejected as ungrounded. Before the Appellate Panel, the Applicant filed allegations related to the erroneous determination of facts and discrimination and the same were rejected as ungrounded at the level of the Appellate Panel. A hearing was not held at the Specialized Panel or the Appellate Panel. The first pointed out that “The judgment was rendered without holding a public hearing, because the facts and legal arguments that have been provided are sufficiently clear. The Panel does not expect any other relevant information for review. […] ”, while the second, had stated that “the Appellate Panel decides to waive the oral part of the proceedings”.

The Applicant challenged the findings of the Appellate Panel before the Court, alleging (i) a violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights (hereinafter: ECHR) due to the failure to hold a hearing and the lack of reasoning for the court decision; (ii) violation of Article 24 of the Constitution in conjunction with Article 14 of the ECHR and Article 1 of Protocol no. 12 of the ECHR due to unequal treatment; and (iii) violation of Article 49 of the Constitution.

The Court, in the circumstances of this case, assessed the Applicant’s allegations regarding the absence of a hearing, a right guaranteed, according to the explanations of this Judgment, by Article 31 of the Constitution in conjunction with Article 6 of the ECHR.

In assessing the relevant allegations, the Court has initially elaborated on the general principles deriving from the case-law of the ECtHR and that of the Court, on 5 (five) its judgments in the cases of the former enterprise “Agimi”, regarding the right to a hearing, clarifying the circumstances in which such is necessary, based, inter alia, on the Judgment of the Grand Chamber of the ECtHR, Ramos Nunes de Carvalho and Sá v. Portugal. The Court has clarified, inter alia, that (i) the absence of a party’s request for a hearing does not necessarily imply the waiver of such a right and that the assessment of the impact of the absence of such a request depends on the specifics of the law and the particular circumstances of a case; and (ii) in principle, the parties are entitled to a hearing at least at one level of jurisdiction, unless “there are exceptional circumstances that would justify the absence of a hearing”, which based on the case law of the ECtHR, in principle relate to cases in which “exclusively legal or highly technical issues are examined”.

In the circumstances of the present case, the Court finds that (i) the fact that the Applicant has not requested a hearing before the Appellate Panel does not imply their waiver of this right nor does it absolve the Appellate Panel of the obligation to address on its own initiative the necessity of holding a hearing; (ii) the Appellate Panel did not deal with “exclusively legal or highly technical matters”, matters on the basis of which “exceptional circumstances that would justify the absence of a hearing” could have existed, but on the contrary considered both the issues of fact and law; and (iii) the Appellate Panel did not justify the “waiver of the oral hearing”. Taking into account these circumstances and other reasons given in this Judgment, the Court found that the challenged Judgment, namely Judgment [AC-I-17-0074-A123] of 8 October 2019 of the Appellate Panel, was rendered contrary to the guarantees embodied in Article 31 of the Constitution in conjunction with Article 6 of the ECHR, regarding the right to a hearing.

Finally, the Court also notes that (i) based on the applicable law on the SCSC, the Appellate Panel has full jurisdiction to review the decisions of the Specialized Panel and, consequently, based on the case law of the ECtHR, has the possibility of correcting the absence of a hearing at the level of the lower court, namely, the Specialized Panel; and (ii) it is not necessary to deal with the Applicant’s other allegations with regard to the violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR with regard to the lack of reasoning of the court decision, as well as allegations of violation of Article 24 of the Constitution in conjunction with Article 14 of the ECHR, and Article 1 of Protocol no. 12 of the ECHR and Article 49 of the Constitution, because the latter must be considered by the Appellate Panel in accordance with the findings of this Judgment; and (iii) the finding of a violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, in the circumstances of the present case relates only to the procedural guarantees for a hearing and in no way prejudices the outcome of the merits of the case.