Constitutional Court

KI92/19, Applicant: HUBO INTERNATIONAL N.V., constitutional review of Judgment E. Rev. No. 31/2018 of the Supreme Court of Kosovo of 28 January 2019

KI 92/19, resolution on inadmissibility of 25 March 2021, published on 6 May 2021

Keywords: legal persons, individual referral, constitutional review of challenged decision of the Supreme Court, manifestly ill-founded

In 2007, the Applicant concluded a contract for the sale of goods with RIVA MARKET, on the basis of which contract, the Applicant delivered the goods to RIVA MARKET, however, RIVA MARKET did not pay the contracted amount to the Applicant.

RIVA MARKET signed a guarantee agreement with the insurance company „SIGAL“ from Prishtina (hereinafter: SIGAL insurance), based on which SIGAL insurance issued a guarantee (no. 10032007/532) for the Applicant guaranteeing delayed payment for more than 90 days up to a maximum amount of € 400,000 with a time limit covering the period from 2 August 2007 to 2 August 2008.

As the contractual amount of money for the delivered goods had not been paid, the Applicant attempted to fax a request to activate the SIGAL insurance guarantee, but due to certain difficulties he failed, therefore on the same day he sent the request for activation of the guarantee via e-mail to the email address of the person in charge of SIGAL Insurance.  SIGAL insurance did not activate the guarantee claiming that the request for activation of the guarantee was not submitted in accordance with the contractual obligations.

Regarding this, the Applicant filed a lawsuit, requesting that SIGAL Insurance to undertake to pay to the Applicant the amount provided as a guarantee in connection with the payment of the contractual debt, which RIVA MARKET owes to the Applicant.

This appeal was considered by the regular courts concluding with the Supreme Court which concluded that the Applicant did not comply with the manner provided by the disputed guarantee for the activation of the latter.

The Applicant alleged that the regular courts violated its constitutional rights guaranteed by Article 24 [Equality Before the Law], Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR.

The Court found that the arguments raised in the Applicant’s Referral did not in any way justify the alleged violations of constitutional rights invoked by the Applicant and he did not substantiate the allegations of violation of the rights protected by the Constitution and the Convention,  therefore, the Court concluded that the Applicant’s allegations of violation of the rights guaranteed by Article 24 of the Constitution, these allegations of the Applicant are considered as allegations falling into category (iii) of the “unsubstantiated or unreasoned” allegations, and with regard to the Applicant’s allegations of violation of the rights guaranteed by Article 31 of the Constitution, these Applicant’s allegations are qualified as allegations that fall into the category (i) of the allegations that are considered as “fourth instance“ allegations. Therefore, the latter are manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 39 of the Rules of Procedure.