Constitutional Court

KI108/22, Applicant: “Metalinvest J.S.C.”, Constitutional review of Judgment [AC–I–19–0213] of the Appellate Panel of the Special Chamber of the Supreme Court on the Privatization Agency of Kosovo Related Matters, of 16 January 2022

KI108/22, Judgment of 25 February 2023, published on 27 March 2023

Key words: individual referral; failure to hold a hearing; violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights

The circumstances of the present case are related to the dispute between the Applicant and Ferronikeli company, due to the allegation that the latter had not paid to the Applicant the products it had delivered in 1997, as a result of business cooperation between these companies. In this regard, the Applicant filed a lawsuit in 1997 against Ferronikeli company, while in 2006 it had filed an enforcement request with the District Court in Prishtina. The District Court interrupted this procedure on the grounds that Ferronikeli company had entered into privatization procedure.

Consequently, the Applicant submitted the claim to the Liquidation Authority of the Kosovo Trust Agency, whereby it claimed the collection of the alleged debt. The complaint was rejected on the grounds that there was no evidence in the case files that it was submitted within the deadline of three (3) years from the date when the debt arose. The Applicant then submitted an appeal to the Specialized Panel of the Special Chamber of the Supreme Court of Kosovo, on which occasion the latter rejected the Applicant’s claim, without holding a public hearing during the proceedings. Same also acted the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, which also rejected the Applicant’s claim, including its specific request to hold a hearing. As a result, the Applicant challenged the Judgment of the Appellate Panel before the Court, highlighting that it violated Articles 24 [Equality before the Law], 31 [Right to Fair and Impartial Trial], 54 [Judicial Protection of Rights] and Article 102 [General Principles of the Judicial System] of the Constitution as well as Article 6 (The Right to a fair trial) of the European Convention on Human Rights, among others, due to failure to hold a hearing.

In assessing the allegations of the Applicants, the Court focused on those allegations related to the absence of a hearing before the Special Chamber of the Supreme Court, and in this context, (i) the Court first elaborated the general principles regarding the right to a hearing as guaranteed by the Constitution and the European Convention on Human Rights; and thereafter, (ii) applied the latter to the circumstances of the present case. The Court, based on its five (5) Judgments in the cases of the former enterprise “Agimi”, and, among others, based on the Judgment of the European Court of Human Rights, Ramos Nunes de Carvalho e Sá against Portugal, clarified the main principles regarding (i) the right to a hearing before the courts of first instance; (ii) the right to a hearing before the second and third instance courts; (iii) the principles based on which it must be established whether a hearing is necessary; and (iv) if the hearing was not held at the first instance, can it be corrected by holding the hearing at a higher instance and the relevant criteria in making this assessment. In addition, the Court specifically considered and applied its case law, as well as the case law of the European Court of Human Rights, based on which the assessment is made as to whether the absence of a request for a hearing can be considered a waiver to that right.

Based on these principles, the Court found that the challenged Judgment, namely Judgment [AC–I–19–0213] of 16 March 2022 of the Appellate Panel, was issued in violation of the guarantees embodied in Article 31 of the Constitution as read in conjunction with Article 6 of the European Convention on Human Rights in terms of the right to a hearing, among others, because (i) the fact that the Applicant did not request a hearing before the Specialized Panel, does not mean waiving this right; (ii) the Applicant had expressly requested the holding of a public hearing before the Appellate Panel, thus creating the obligation for this Panel to address the necessity of holding the hearing; (iii) The Appellate Panel had not addressed “exclusively legal or highly technical issues”, based on which “extraordinary circumstances that would justify the absence of a hearing” could have existed, (iv) the Appellate Panel had not reasoned “the waiver of the hearing” therefore, (v) the Applicant was denied the right to a hearing at two instances of the Special Chamber of the Supreme Court in violation of the constitutional guarantees.

As a result, the Court found that the aforementioned Judgment of the Appellate Panel of the Special Chamber of the Supreme Court must be declared null and void and be remanded for retrial. The Court also emphasized the fact that its finding of a violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, in the circumstances of the present case, relates exclusively to the procedural guarantees, namely to the absence of a hearing in two decision-making instances, and in no way it relates nor prejudices the outcome of the merits of the case. This Judgment will also be supplemented with a concurring opinion.