Constitutional Court

KI67/22, Applicant Zeqirja Prebreza, Constitutional review of Judgment [CA. No. 1343/2021] of the Court of Appeals of Kosovo of 29 December 2021 

KI67/22, Judgment of 4 April 2023, published on 10 May 2023

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

The circumstances of the present case are related to the Applicant’s statement of claim against the Kosovo Energy Corporation, as the latter had rejected the Applicant’s request for recognition of the right to compensation for three jubilee salaries. 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 statement of claim of the Applicant as ungrounded. Based on the relevant 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 Judgment of the Court of Appeals did not consider the latter, moreover, it found that such an appeal was not submitted by the relevant Applicant.

The Applicant before the Court challenges the aforementioned Judgment of the Court of Appeals, claiming a violation of his rights protected by (i) paragraphs 1 and 2 of Article 24 [Equality Before the Law]; (ii) paragraphs 1 and 2 of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo in conjunction with Article 6 of the European Convention on Human Rights; and (iii) paragraph 1 of Article 46 [Protection of Property] of the Constitution, 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 divergence in the case law of the Court of Appeals.

During the review of the Applicant’s allegations, the Court focused on the allegations related to the principle of “equality of arms” and the principle of “adversariality”, as a result of the non-review of the Applicant’s response to the appeal of the opposing party by the Court of Appeals, first elaborating (i) the general principles regarding “equality of arms” and the principle of procedural “adversariality”, guaranteed by paragraph 1 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of 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 to 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 by the Judgment [CA. No. 1343/2021] of 29 December 2021, failed to guarantee the application of the principle of “equality of arms” and the procedural “principle of adversariality”, because the Applicant has been put 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.

As a result, the Court found that the challenged Judgment of the Court of Appeals should be declared invalid and the case be remanded to the Court of Appeals for retrial. The Court also emphasized the fact that, on its part, the finding of the violation of paragraph 1 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of the European Convention on Human Rights, in the circumstances of the present case, is only related to the procedural guarantees regarding 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 anyway, it is not related to and does not prejudice the outcome of the merits of the case. This Judgment will also be completed by a concurring opinion.