- The Constitutional Court
Case No.KI120/20, Applicant: N.T.SH. “Virtuo”, Constitutional review of the Judgment E. Rev. no. 23/2020 of the Supreme Court of the Republic of Kosovo, of 27 April 2020
Keywords: individual referral, request for partial cancellation of the contract, manifestly ill-founded
The subject matter of the Referral is the constitutional review of the challenged Judgment, which allegedly has violated the Applicant’s fundamental rights and freedoms guaranteed by Articles 24 [Equality before the Law] and 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution), in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights (hereinafter: the ECHR).
The circumstances of the present case are relate to the Applicant’s claim, for (i) partial cancellation of the supply contract [KSV/014. 12. 051] concluded between the MoH as the contracting authority and the joint venture “Printec L.L.C. & NTSH Virtuo”, as economic operator, only in respect of the respondent party “Printec” L.L.C., alleging that the signatory of the contract Y.Sh, was not the General Director of the respondent party and that he did not have the authority to sign the contract, and (ii) the claim for damages, due to the illegitimate and unauthorized appearance of Y.Sh on which occasion as alleged by the Applicant material damage of 30,000.00 € and a lost profit of 830,000.00 € was caused to him. The Basic Court had rejected the Applicant’s statement of claim filed against the respondent “Printec” LLC as ungrounded. Acting upon the respective appeal and the request for revision, the Court of Appeals, a fact confirmed also by the Supreme Court, rejected the Applicant’s statement of claim as ungrounded.
The Applicant challenges before the Court the findings of the regular courts, alleging (i) violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, as a result of erroneous interpretation of the law, namely Articles 33, 109 and 110 of the LBO; (ii) violation of Article 24 of the Constitution, as a result of erroneous interpretation of the law, namely paragraph 1 of Article 72 of the LCT.
The Court first notes that the Applicant’s allegations for violation of Articles 24 and 31 of the Constitution in conjunction with Article 6 of the ECHR as a result of erroneous interpretation of the applicable law constitute claims of the category, which the Court in accordance with its case law and that of the ECtHR, in principle, considers as “fourth instance claims“. Therefore, taking into consideration the allegations made by the Applicant and the facts presented by it, as well as the reasonings of the regular courts elaborated above, the Court considers that the Applicant does not sufficiently prove or substantiate its allegation that the regular courts may “have applied the law in a manifestly erroneous manner”, thus resulting in “arbitrary conclusions” or “manifestly unreasonable” for the Applicant, and consequently its allegations for erroneous interpretation and application of the applicable law, qualify as claims falling within the category of “fourth instance” and as such, they reflect claims at the level of “legality” and are not argued at the level of “constitutionality”. Consequently, they are manifestly ill founded on constitutional basis, as provided for by paragraph (2) of Rule 39 of the Rules of Procedure
Consequently and finally, the Court finds that the Referral is manifestly ill-founded on constitutional basis and must therefore be declared inadmissible, pursuant to paragraph 7 of Article 113 of the Constitution and Rule 39 (2) of the Rules of Procedure.
KI – Individual Referral
Referral is manifestly ill-founded