Constitutional Court

KI36/22, Applicant: “MATKOS GROUP” L.L.C., Constitutional review of Judgment [ARJ. nr. 116/2021] of the Supreme Court of Kosovo of 28 October 2021

KI36/22, judgment of 18 January 2023, published on 8 March 2023

Keywords: individual referral, reasoning of the court decision, manifestly erroneous and arbitrary interpretation of the law, security measure, interim measure, preliminary procedure

The circumstances of the present case are related to the decisions of the Ministry of Infrastructure and Environment and the Ministry of Economy and Environment concerning granting of water and environmental permits, based on Law no. 04/L-147 on Waters of Kosovo and Law no. 03/L-025 on Environmental Protection, which enabled the Applicant to invest through the construction of infrastructure for hydropower plants for the purpose of carrying out his business activity of energy production from renewable sources. Two non-governmental organizations challenged the legality of these decisions by lawsuits in the Basic Court, where, among other things, they proposed to postpone the execution of the Ministry’s decisions until the merits of the case are resolved.

The Basic Court approved, as grounded, the proposal of two non-governmental organizations and rendered the decision to postpone the execution of the decisions of the competent Ministry for the environment, namely water and environmental permits, until the Basic Court takes a final decision on the merits of the case. After the appeal filed by the Applicant as an interested party, the Court of Appeals annulled the decision of the first instance and remanded the case to the Basic Court for retrial, and then in a repeated procedure the Basic Court again approved, as grounded, the proposal of the claimants and postponed the execution of the decision of the MEA, namely the decision on the approval of the water permit, until the final decision by the court regarding the lawsuit of the claimants. After that, deciding according to the Applicant’s appeal, the Court of Appeals modified the decision of the first instance in such a way that it rejected the proposal of the non-governmental organizations to postpone the execution of the decision of the MEA on the approval of the water permit until the final decision related to the claimants’ lawsuit is rendered. Deciding on the request for an extraordinary review of the court decision of the non-governmental organizations, the Supreme Court approved their request, in such a way that it annulled the judgment of the Court of Appeals and upheld the first instance judgment of the Basic Court.

The Applicant claimed before the Court that his fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] and 46 [Protection of Property] of the Constitution of the Republic of Kosovo in conjunction with Article 6 (Right to a fair trial) and Article 1 of Protocol no. 1 (Protection of property) of the European Convention on Human Rights have been violated, as a result of the lack of a reasoned court decision and the erroneous interpretation of the law, contrary to the procedural guarantees established in Article 31 of the Constitution and Article 6 of the European Convention on Human Rights, with special emphasis on the proceedings conducted before the Supreme Court.

When assessing the Applicant’s allegations, the Court first (i) elaborated on the general principles of its case law and the case law of the European Court of Human Rights regarding the reasoning of court decisions and the manifestly erroneous and arbitrary interpretation of the law, and then (ii) applied the same principles to the circumstances of the present case. In this regard, the Court concluded that the Supreme Court, in addition to describing the legal provisions, did not provide sufficient reasoning regarding the criteria that must be met in order to decide on the suspension of the decisions of the Ministry competent for the environment. In addition, and despite the fact that the lack of consideration of these provisions of the Law on Administrative Conflicts has been continuously highlighted before the court instances through the relevant appeals by the Applicant, the Supreme Court upheld the position of the Basic Court, without examining the essential arguments of the Applicant.

Making a comprehensive assessment of the circumstances of the present case, the Court found that the challenged judgment of the Supreme Court in conjunction with the decisions of the Basic Court and Court of Appeals did not fully and clearly examine the decisive facts and the legal requirements defined in Article 22 of the Law on Administrative Conflicts, which refer to allowing the postponement of the execution of two decisions of the competent Ministry for the environment, and as a result, they contained erroneous interpretation and application of the law, which resulted in arbitrary conclusions for the Applicant. The Court also stated that its case law in this context is already highly consolidated, and that it also held the same position in three previous Judgments, namely in cases KI75/21, Applicant: “Abrazen LLC”, “Energy Development Group Kosova LLC”, “Alsi & Co. Kosovë LLC” and “Building Construction LLC”, Judgment of 19 January 2022; KI202/21, Applicant: “Kelkos Energy” L.L.C., Judgment of 29 September 2022; and KI143/22, Applicant: Hidroenergji L.L.C., Judgment of 15 December 2022, emphasizing that, inter alia, the imposition of interim measures, namely the suspension of the execution of decisions until the merits of the case are resolved, must be reasonable, proportionate and based on a detailed reasoning of the fulfillment of the criteria defined in this context in the provisions of the Law on Administrative Conflicts.

Finally, based on the clarifications given in the published judgment, the Court concluded that the judgment [ARJ. no. 116/2021] of the Supreme Court of 28 October 2021, was rendered in violation of the procedural guarantees established in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, due to the lack of a reasoned court decision and arbitrary interpretation and application of the law, and remanded the case to the Supreme Court for reconsideration. This Judgment will also be supplemented with a concurring opinion.