Constitutional Court

KI154/23, applicant Afrim Tafarshiku, Constitutional review of Judgment [AC. No. 8304/2021], of 20 February 2023, of the Court of Appeals of Kosovo

KI154/23, Judgment of 28 May 2024, published on 12 July 2024

Keywords: individual referral, right to fair and impartial trial, equality of arms, principle of procedural adversariality

The Constitutional Court of the Republic of Kosovo, on 28 May 2024, decided regarding the referral KI154/23, whereby the constitutional review of Judgment [AC. No. 8304/2021] of 20 February 2023 of the Court of Appeals of the Republic of Kosovo was requested. The Court decided: (i) unanimously, to declare the referral admissible and to find 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 paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights; as well as (ii) by 8 (eight) votes for and 1 (one) against, to declare invalid the contested Judgment of the Court of Appeals, and to remand the latter for reconsideration in accordance with the Judgment of this Court.

The circumstances of the present case are related to the applicant’s claim for recognition of the right to compensation of 3 (three) jubilee salaries by the Kosovo Energy Corporation, as the latter rejected the applicant’s request for recognition of the right to compensation mentioned above. The Basic Court approved the claim of the applicant as grounded; while acting upon the appeal of the Kosovo Energy Corporation, the Court of Appeals modified the Judgment of the Basic Court and rejected the claim of the applicant as ungrounded. Based on the case file, in the appeal submitted to the Court of Appeals by the Energy Corporation of Kosovo, the applicant submitted a response to the appeal. However, the Court of Appeals did not consider the latter.

The Applicant before the Court contested the aforementioned Judgment of the Court of Appeals, claiming a violation of his rights protected by Articles 3 [Equality Before the Law], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution in conjunction with Articles 6 (Right to a fair trial) and 13 (Right to an effective remedy) of the European Convention on Human Rights, in essence, on the grounds of: (i) the lack of consideration of his response to the appeal filed by the opposing party and, as a consequence, the violation of the principle of “equality of arms”; (ii) erroneous application of the law; as well as (iii) the lack of consistency, namely the divergence in the case law of the Court of Appeals related to disputes regarding jubilee salaries.

During the review of the applicant’s allegations, the Court assessed that the essential allegations of the applicant in the circumstances of the present case are related to the principle of “equality of arms” and the principle of “adversariality”, as a result of the Court of Appeals not reviewing the applicant’s response to the opposing party’s appeal. Following this, the Court first elaborated: (i) the general principles regarding “equality of arms” and the principle of procedural “adversariality”, guaranteed by the Constitution and the European Convention on Human Rights and the relevant case law of the Constitutional Court and the European Court of Human Rights, and then (ii) applied the latter in the circumstances of the present case.

Based on these principles, the Court first clarified that a response to the appeal was submitted by the applicant within the legal deadline and assessed that the Court of Appeals, due to not considering the response to the appeal, in Judgment [AC. no. 8304/2021] of 20 February 2023, has failed to guarantee the application of the principle of “equality of arms” and the procedural “principle of adversariality”, because the applicant has been placed at a significant disadvantage vis-à-vis the opposing party, and as a result, he was deprived of the opportunity to have a real and substantive confrontation with the arguments and claims presented by the opposing party.

Therefore, and as explained in the published Judgment, the Court found that Judgment [AC. no. 8304/2021] of 20 February 2023, of the Court of Appeals of Kosovo was rendered in violation of the constitutional rights of the applicant, guaranteed by paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with paragraph 1 of Article 6 [Right to a fair trial] of the European Convention on Human Rights. The Court also emphasized the fact that its finding is only related to the procedural guarantees related to the principle of “equality of arms” and the principle of procedural “adversariality“, namely the lack of consideration of the response to the appeal by the Court of Appeals and that, in no way does not relate to and does not prejudice the outcome of the merits of the case. This Judgment is also supplemented by a dissenting opinion.