Constitutional Court

KI75/21, Applicant: “Abrazen LLC”, “Energy Development Group Kosova LLC”, “Alsi & Co. Kosovë LLC” and “Building Construction LLC”, Constitutional review of Judgment ARJ-UZVP. No. 44/2020 of the Supreme Court, of 23 July 2020 

Keywords: individual referral, reasoning of the court decision, security measure, decision to postpone the execution of the ERO decision 

The circumstances of the respective case are related to a Decision of the Energy Regulatory Office, on determination of Feed-in Tariff for generation of electricity from solar panels/photovoltaic, according to which, the respective Applicants were provided with preliminary authorizations and were on the waiting list to be informed about inclusion in the support scheme for available targets. The Applicants were in this category. Sami Kurteshi, filed a lawsuit against this decision of the ERO, in the Basic Court in Prishtina, by which, requested (i) the annulment of the abovementioned decision of the ERO; and (ii) postponement of execution of the same, until the determination of the disputed case on merit, claiming that as a consequence of this Decision, the electricity could become more expensive, therefore as a consumer of electricity he would suffer a irreparable damage.

The Basic Court approved as grounded the request to postpone the execution of the decision until the issuance of final court decision. In the reasoning of its decision, the latter had described the legal criteria set out in Article 22 of Law No. 03/L-202 on Administrative Conflicts (LAC), but despite the fact that it referred to “reliable evidence”, had not presented any of them nor it justified how they resulted in meeting the criteria set out in Article 22 of the LAC, namely (i) whether the execution would cause a damage to the claimant, which would be difficult to repair; and (ii) the postponement is not against the public interest, nor would the postponement cause any major damage to the opposing party or the interested person.

The ERO and the Applicants filed an appeal against the abovementioned Decision, stating that the Judgment of the Basic Court lacked reasoning regarding (i) the decisive facts and legal criteria for allowing the postponement of execution of the ERO decision, as required by Article 22 of the LAC; and (ii) the lack of procedural legitimacy of the claimant, as required, inter alia, by Article 34 of the LAC. The Court of Appeals and the Supreme Court, acting on the appeal and the request for extraordinary review, respectively, upheld the position of the Basic Court. However, despite the allegations of the Applicants, none of these instances (i) beyond the description of the legal provision, namely Article 22 of the LAC, have clarified how the legal criteria for postponing the execution of the decision were met in the circumstances of the respective case; and (ii) nor have provided any reasoning at all pertinent to substantive allegation of the Applicants regarding the claimant’s lack of procedural legitimacy under Article 34 of the LAC.

The Applicants challenged before the Court the findings of the regular courts, alleging violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, mainly as a result of the lack of a reasoned court decision, contrary to the procedural guarantees set out in the abovementioned articles.

In assessing the Applicants’ allegations, the Court first elaborated on the general principles of its case law and that of the European Court of Human Rights regarding the reasoning of court decisions, and then applied the same to the circumstances of the present case. In this regard, the Court found that the Basic Court, in suspending the execution of a decision for an indefinite period, respectively until determination of a case based on merits, beyond the description of legal provisions, had not provided any reasoning regarding the criteria to be fulfilled to decide on the suspension of a decision, namely those specified in Article 22 of the LAC and nor it had considered at all whether the claimant, inter alia, had procedural legitimacy, as required by Article 34 of the LAC . Furthermore, and despite the fact that the lack of treatment of these two articles of the LAC had been consistently raised in court instances through relevant appeals by the Applicants, both the Court of Appeals and the Supreme Court had simply upheld the position of the Basic Court, by not addressing any of the arguments of the parties raised through the relevant appeals, respectively by not explaining how, for the suspension of execution of a decision until meritorious determination of the case, the criteria set out in Articles 22 and 34 of the LAC have been met, respectively.

In this regard, the Court emphasized that while based on the case law of the Court and of the European Court of Human Rights, courts with appeal jurisdiction in approving the decision of a lower instance should not necessarily provide clarification on each argument of the party, they must show “sufficient consideration” during such an assessment, in this context, the allegations of the parties which are essential and/or determining for the merits of a case, must necessarily be addressed and justified. In the circumstances of this case, the regular courts had approved the suspension of a decision until meritorious determination of the case, only describing legal provisions, and without providing any reasoning regarding the fulfilment of the criteria clearly defined in Articles 22 and 34 of the LAC, respectively.

Finally, based on the explanations provided in the published Judgment, the Court found that the decisions of the regular courts were issued in violation of the procedural guarantees set out in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, due to the lack of a reasoned court decision, remanding the case for reconsideration to the Basic Court.