Constitutional Court

KI143/22, Applicant, Hidroenergji l.l.c., Constitutional review of Judgment [ARJ. UZVP. no. 51/2022] of the Supreme Court of Kosovo of 19 July 2022

KI143/22, Judgment of 15 December 2022, published on 24 January 2023

Keywords: individual referral, reasoning of the court decision, manifestly erroneous and arbitrary interpretation of the law, security measure, interim measure, pre-trial 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, for issuing water permit and environmental permit, respectively, 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 in order to conduct its business activity for the production of energy from renewable sources. Two non-governmental organizations challenged the legality of these two decisions by lawsuits submitted to the Basic Court in Prishtina, proposing, among other things, the postponement of the execution of the decisions of the Ministry until the case is decided on merits.

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 responsible Ministry of Environment, namely the water and environmental permit, until the Basic Court decides by a final decision regarding the merits of the case. After the Applicant’s appeal, in the capacity of the interested party, the Court of Appeals upheld the Decision of the Basic Court, while, the request for an extraordinary review of the court decision, submitted by the Applicant to the Supreme Court was rejected as ungrounded, upholding the findings of the Basic Court and the Court of Appeals.

The Applicant before the Court alleged that its fundamental rights and freedoms guaranteed by Articles 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 stipulated by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights, with emphasis on the procedure conducted before the Supreme Court.

In assessing the Applicant’s allegations, the Court first elaborated on the general principles of its case law and of the European Court of Human Rights regarding the reasoning of court decisions and manifestly erroneous and arbitrary interpretation of the law, and then applied the latter in the circumstances of the present case. In this regard, the Court concluded that the Supreme Court, beyond the description of the legal provisions, did not give sufficient reasoning regarding the criteria that must be met in order to decide on the suspension of the decisions of the relevant Ministry of Environment. Moreover, and despite the fact that the lack of treatment of these provisions of the Law on Administrative Conflicts was continuously raised in judicial instances through the respective complaints by the Applicant, the Supreme Court approved the position of the Basic Court and that of the Court of Appeals, not addressing its core arguments.

In this respect, the Court in case KI202/21, Applicant Kelkos Energy L.L.C., emphasized the importance that the imposition of interim measures, namely the suspension of the execution of the decisions, until the resolution on merits of the cases must be reasonable, proportionate and based on detailed reasoning of meeting the criteria defined in this context in the respective provisions of the Law on Administrative Conflicts. More specifically, the Court, giving a comprehensive assessment of the circumstances of the present case, found that the challenged Judgment of the Supreme Court in conjunction with the Decisions of the Basic Court and the Court of Appeals, did not fully and clearly address the crucial facts and legal requirements  established in Article 22 of the Law on Administrative Conflicts, regarding the permission to postpone the execution of two decisions of the relevant Ministry of Environment, and as a result, the latter contained erroneous interpretation and application of the law, which have resulted in arbitrary conclusions for the Applicant.

The Court noted that its judgment was rendered only in relation to the procedure for the suspension of the challenged decisions on the issuance of water and environmental permits by the relevant Ministry of Environment before the regular courts, until the latter decide on the merits of the lawsuit. The question of the legality of the challenged decisions of the relevant Ministry of Environment is under consideration before the regular courts and the Judgment of the Court in this case in no way prejudices their decision-making regarding the lawsuit against the challenged decisions of this Ministry.

Finally, based on the clarifications given in the published Judgment, the Court concluded that, the Judgment [ARJ. UZVP. no. 51/2022] of 19 July 2022 of the Supreme Court, Decision [AA. no. 386/2022] of 26 May 2022 of the Court of Appeals and Decision [A. no. 3129/2021] of 12 April 2022 of the Basic Court in Prishtina, were 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, remanding the case for reconsideration to the Basic Court.