Constitutional Court

KI31/18, Request for constitutional review of Judgment E. Rev. No. 20/2017 of the Supreme Court of the Republic of Kosovo of 20 November 2017

KI 31/18, Applicant: Municipality of Peja

Judgment of 12 April 2019

Keywords: right to fair and impartial trial, reasoning of a court decision, decision on interim measure

Referral KI31/18 was filed by the Municipality of Peja. The latter requested the constitutional review of the abovementioned Judgment of the Supreme Court – which upheld the decisions of the regular courts under which the Applicant was obliged to pay to the private company DPZ Gashi Towing Service the amount of money in value of € 392,515.00, on behalf of the contractual damage, as well as the procedural costs.

Along with its main Referral, the Applicant also filed a request for the imposition of interim measure in order to prevent the execution of the decisions of the regular courts, by which she was obliged to pay the abovementioned amount of money. On 27 February 2019, the Constitutional Court had separately examined the Applicant’s request for interim measure and by the Decision on Interim Measure, published on 4 March 2019, it approved the latter based on the criteria established in the Law and the Rules of Procedure. The Constitutional Court approved the interim measure, until 30 April 2019, “without prejudice to any further decision it will render regarding the merits of the referral”.

Prior to the expiration of the interim measure, namely on 12 April 2019, the Constitutional Court considered the Applicant’s Referral as a whole and considered that the latter raised constitutional issues, the deciding of which required a review of the merits of the Referral. Having considered the merits of the Referral, the Court found that in the present case there has been no violation of the Constitution or of the ECHR and that the Applicant had benefited from the constitutional guarantees for a fair and impartial trial in accordance with ECtHR case law and the Constitutional Court.

The Constitutional Court widely dealt with the Applicant’s main allegations that the factual situation was not completely determined by the regular courts and that the Supreme Court failed to provide a reasoned decision by failing to respond to some of its arguments presented in the request for revision.

Regarding the Applicant’s specific allegations regarding the determination of factual situation and the application of the substantive and procedural law, the Constitutional Court found that the Supreme Court (as well as the lower instance courts), paid due attention to the relevant standards and the necessary elements for the correct and accurate determination of factual situation. The Constitutional Court also did not find that there was arbitrariness in the way the Supreme Court interpreted substantive and procedural law applicable in the circumstances of the case.

In this regard, the Court referred to its general view that, in principle, the correct and accurate determination of factual situation, as well as the relevant legal interpretations, fall within the competence of the regular courts. The arguments of constitutional violations are only grounded if it is found that the regular courts have violated the rights and freedoms guaranteed by the Constitution and the ECHR – which was not found in the present case.

Regarding the Applicant’s allegation of non-reasoning of the court decision, the Constitutional Court found that the Supreme Court did not violate the Applicant’s right to a reasoned decision – a fundamental component of the right to a fair and impartial trial guaranteed by Article 31 of the Constitution and Article 6 of the ECHR. Referring to the consolidated case law of the ECtHR and of the Constitutional Court, the latter emphasized that, despite the fact that the Supreme Court may not have responded to every item raised by the Applicant, the Supreme Court, by its decision addressed arguments and essential allegations of the Applicant and, consequently, fulfilled the obligation to provide a reasoned court decision.

Given that by the Judgment of the Constitutional Court, the constitutionality of the challenged Judgment of the Supreme Court was found and, therefore, of all other related decisions, the Constitutional Court, in accordance with its general case law,  annulled the interim measure imposed on it previously.