Constitutional Court

KI188/20, Applicant: Insurance Company “SUVA Rechstabteillung”, Constitutional review of Judgment Ae.nr.63 / 2019 of the Court of Appeals of Kosovo, of 15 October 2020.

KI188/20, Judgment adopted on 28 April 2021, published on 15 June 2021

Keywords: individual referral, right to a fair and impartial trial, consistency of the case law, legal certainty, right to a reasoned decision

The circumstances of the present case relate to an accident of 2013, in which, the Applicant’s insured person, namely V.A., had suffered physical injuries. Liability for the accident belonged to R.K., insured with the KIB. The Applicant had compensated its insured person, namely V.A. in the amount of 138,734 CHF, in the name of the medical treatment and compensation due to incapacity for work. In relation to this amount, in 2014, the Applicant addressed the KIB with a claim for compensation on the basis of the right to subrogation determined through the LOR and in the absence of an agreement, it filed a claim with the Basic Court. The Basic Court decided that the Applicant was right and upheld the obligation of the KIB to compensate the Applicant in the amount of 114,477.59 Euros as well as the obligation to pay the interest of twelve percent (12%) per annum, as defined in Article 26 of the Law on Compulsory Insurance, starting from 25 March 2014 until the definitive payment. The Court of Appeals had also finally confirmed the Applicant’s right to adequate compensation on the basis of subrogation, but changed the Judgment of the Basic Court, in respect of the penalty interest. The Court of Appeals had determined that the annual interest should be at the rate of eight percent (8%) per annum based on Article 382 of the LOR and not at the rate of twelve percent (12%) per annum, based on Article 26 of the Law on Compulsory Insurance, as determined by the lower instance court. This finding of the Court of Appeals, concerning the amount of penalty interest, is challenged by the Applicant before the Court, by alleging violations of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, due to (i) violation of the principle of legal certainty as a result of divergence in the relevant case law of the Court of Appeals; and (ii) lack of a reasoned court decision

The Court assessed the Applicant’s allegations, regarding legal certainty and the right to a reasoned decision as one of the guarantees established in Article 31 of the Constitution in conjunction with Article 6 (1) of the ECHR, by basing this assessment upon the case law of the European Court of Human Rights (hereinafter: the ECtHR). The Court elaborated on the general principles deriving from the ECHR and its case law relating to the judicial consistency and the right to a reasoned decision.

In relation to the allegation for violation of the principle of legal certainty, the Court found: (i) that in the present case the existence of “deep and long-standing” differences regarding the consistency of the case-law of the Supreme Court has not been proved; (ii) that there exists a mechanism for fair administration of justice and for review of changes in the case law; (iii) on 1 December 2020, the Supreme Court has issued a “Legal Opinion on Interest related to the Applicable Law, Interest Rate and Calculation Period” based on Article 14. 2.10 of the Law on Courts; (iv) that the possibility of conflicting decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction; (v) the question as to which law is to be applied in the circumstances of the present case is the prerogative and duty of the Supreme Court; and, that (v) the role of the Supreme Court is precisely to resolve such conflicts.

In relation to the allegation for violation of the right to a reasoned decision, the Court has assessed that the Supreme Court (i) has provided the legal basis and explained why in the Applicant’s case is applied the penalty interest at the rate of 8%; (ii) the challenged judgment of the Supreme Court contains a logical connection between the legal basis, the reasoning and the conclusions drawn; (iii) as a logical consequence between the legal basis, the reasoning and the conclusions there has resulted that the challenged judgment of the Supreme Court meets the requirements of a reasoned decision; and, that (iv) whether the Applicant is recognized the right to 12% or 8% of the penalty interest is a matter of application and interpretation of the law and of the discretion of the Supreme Court, and as such, in itself, they do not come into contradiction with the right to a fair and impartial trial.

Finally, the Court found that, in the circumstances of the present case, there has been no violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (1) (Right to a fair trial) of the ECHR.