Constitutional Court

KI21/23, Applicant: “Kelkos Energy” L.L.C. Constitutional review of Judgment [ARJ. UZVP. No. 119/22] of the Supreme Court of Kosovo, of 16 December 2022  

KI21/23, Judgment of 29 August 2023, published on 29 September 2023

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

The circumstances of the present case are related to the decisions of the Ministry of Economy and Environment and the Energy Regulatory Office pertaining the issuance of water and environmental permits, in compliance with 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 purposes of performing business activity of energy production from the renewable sources. Three citizens of the Republic of Kosovo challenged the legality of these decisions through lawsuits filed with the Basic Court in Prishtina, proposing thereby also postponement of the execution of the aforementioned decisions until the adjudication of the merits of the case in an administrative conflict.

The matter related to the postponement of the execution of the challenged decisions, namely the procedures related to the imposition of the security measure/interim measure, has been subject to adjudication and reconsideration before the regular courts, including twice each before the Basic Court, the Court of Appeals and the Supreme Court. More precisely, (i) the Basic Court initially approved, as grounded, the proposal of the claimants and rendered a decision to postpone the execution of the decisions of the Ministry of Economy and Environment and the Energy Regulatory Office, namely water and environmental permits, until the Basic Court renders a final decision on the merits of the case; (ii) following their respective appeals, namely that of the Applicant before the Energy Regulatory Office and the Ministry of Economy and Environment, the Court of Appeals annulled the decision of the Basic Court and remanded the case for reconsideration; (iii) in a repeated procedure, the Basic Court imposed again the security/interim measure, suspending thereby the implementation of the challenged decisions; while (iv) the Court of Appeals, acting upon the respective appeals, modified the decision of the first instance, namely that of the Basic Court, rejecting thereby the proposal of the claimants to postpone the execution of the decisions of the relevant Ministry of Environment.

The Supreme Court, deciding on the request for extraordinary review of the court decisions of the claimants, approved their request as grounded, affirming thereby the first instance decision, namely leaving the security/interim measure in force. Such decision of the Supreme Court has been challenged in the Constitutional Court, alleging, among others, violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights and Article 46 (Protection of property) of the Constitution, in conjunction with Article 1 of Protocol No. 1 of the European Convention on Human Rights, in essence, as a result of violation of the right to a reasoned court decision, arbitrary application of the law and violation of the right to property. Through Judgment KI202/21, with the Applicant “Kelkos Energy” L.L.C. published on 15 November 2022, the Constitutional Court decided that the challenged Judgment of the Supreme Court was issued in violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, in essence, as a result of violation of the right to a reasoned court decision. The Constitutional Court, among others, (i) upheld the decision of the Court of Appeal based on which, the challenged decisions of the Ministry of Economy and Environment and the Energy Regulatory Office were allowed to be implemented; and (ii) ordered the Supreme Court to notify the Court about the measures taken in implementation of the Judgment.

After decision-making of the Constitutional Court, the Supreme Court rendered a new decision, through which they reiterated the findings of their previous decision, which had been declared in violation with the Constitution pursuant to Judgment of the Court in the case KI202/21. The Applicant challenged again before the Constitutional Court the same decision of the Supreme Court, alleging thereby violation of his fundamental rights and freedoms guaranteed by Articles 31 [Right to Fair and Impartial Trial] and 46 [Protection of Property] of the Constitution, 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, as a result of the lack of a reasoned court decision and erroneous interpretation of the law, contrary to the procedural guarantees stipulated by Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 (Right to a fair trial) of the European Convention on Human Rights.

In assessing the Applicant’s allegations, the Court elaborated on the general principles of their case law and the case law of the European Court of Human Rights with respect to the reasoning of the court decisions and erroneous and arbitrary interpretation of the law, and then applied the same principles to the circumstances of the present case. The Court, as they had done in their previous judgment, namely Judgment in the case KI202/21, based on the case law of the European Court of Human Rights, emphasized that the imposition of security/interim measures, namely the suspension of the execution of decisions until the adjudication of the merits of the case, must be reasonable, proportional and based on a detailed justification of the fulfillment of the criteria stipulated by the applicable laws, namely, the relevant provisions of the Law on Administrative Conflicts.

In this respect, the Court concluded that, beyond the mere description of the legal provisions, the Supreme Court, even in their new decision failed to provide sufficient reasoning regarding the criteria that must be met in order to decide on the suspension of decisions, namely imposition of the security/interim measures. Moreover, and despite the fact that the lack of treatment of the applicable provisions of the Law on Administrative Conflicts was continuously raised in the court instances, the Supreme Court simply approved the position of the Basic Court and the Court of Appeals, failing thereby to address the essential arguments of the Applicant, including the ones pertaining to the active legitimacy of the respective parties to initiate administrative conflicts in compliance with the provisions of the applicable law.

Finally, based also on the clarifications given in the published Judgment, the Court found that the challenged Judgment of the Supreme Court [ARJ. UZVP. No. 119/22], of 16 December 2022, was rendered contrary to the procedural guarantees stipulated by Article 31 [Right to Fair and Impartial Trial] and 46 [Protection of Property] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights,  due to the lack of a reasoned court decision and erroneous interpretation and application of the law, remanding thereby the case for reconsideration to the Supreme Court. Pursuant to the clarifications given in the published Judgment, until the decision-making of the Supreme Court, applicable remains the Judgment of the Court of Appeals, with which the request of the claimants for suspension of the challenged decisions of the Ministry of Economy and Environment and the Energy Regulatory Office had been rejected.

In the end, the Court emphasized that their Judgment was solely rendered with respect to the procedure for the suspension/postponement of the execution of the challenged decisions of the responsible Ministry until the regular courts decide on the merits of the lawsuit. The issue of the legality of the aforementioned decisions is under review before the regular courts and the Judgment of the Court in this case shall in no way have any prejudice to their decision-making pertaining to the merits of the lawsuit against the challenged decisions of the relevant Ministry and the Energy Regulatory Office.

The present Judgment will be also supplemented with a concurring opinion.