Judgment
Prishtina, on 23 January 2023
Ref. no.:AGJ 2111/23
This translation is unofficial and serves for informational purposes only.
JUDGMENT
in
Case no. KI143/22
Applicant
Hidroenergji L.L.C.
Constitutional review of Judgment ARJ.UZVP.no.51/2022, of the Supreme Court, of 19 July 2022
CONSTITUTIONAL COURT OF THE REPUBLIC OF KOSOVO
composed of:
Gresa Caka-Nimani, President
Bajram Ljatifi, Deputy President
Selvete Gërxhaliu-Krasniqi, Judge
Safet Hoxha, Judge
Radomir Laban, Judge
Remzije Istrefi-Peci, Judge, and
Nexhmi Rexhepi, Judge
Applicant
The Referral was submitted by the company Hidroenergji L.L.C., based in Ferizaj, represented with authorization by Fitim Shabani, advocate in Ferizaj (hereinafter in the text: the Applicant).
Challenged decision
The Applicant challenges the constitutionality of the Judgment ARJ. UZVP. no. 51/2022, of the Supreme Court of Kosovo, of 19 July 2022 (hereinafter in the text: the Supreme Court) in conjunction with the Decision AA. no. 386/2022, of the Court of Appeals, of 26 May 2022 and the Decision A.no. 3129/2021, of the Basic Court in Prishtina, Department for Administrative Matters, of 12 April 2022 (hereinafter in the text: the Basic Court).
The Applicant also requests imposing of the interim measure against the Judgment ARJ. UZVP. no. 51/2022, of the Supreme Court of Kosovo, of 19 July 2022 because: “The implementation of [this Judgment] will cause irreparable material and non-material damage to [the Applicant], as he will be deprived of the right to exercise lawful activity based on the Water Permit and Environmental Permit granted by the administrative bodies [...]”.
Subject matter
The subject matter is the constitutional review of the Judgment of the Supreme Court, whereby it is alleged that the Applicant has been violated the fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo (hereinafter in the text: the Constitution) in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights (hereinafter in the text: the ECHR), as well as Article 46 [Protection of Property] of the Constitution in conjunction with Article 1 (Protection of property) of the Protocol no. 1 of the ECHR.
Legal basis
The Referral is based on paragraph 4 of Article 21 [General Principles], and paragraphs 1 and 7 of Article 113 [Jurisdiction and Authorized Parties], of the Constitution, on Articles 22 (Processing Referrals), 27 (Interim Measures) and 47 (Individual Requests) of the Law no. 03/L-121 on the Constitutional Court of the Republic of Kosovo (hereinafter in the text: the Law) and Rules 32 (Filing of Referrals and Replies) and 56 [Request for Interim Measures] of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo (hereinafter in the text: the Rules of Procedure).
Proceedings before the Constitutional Court
On 20 September 2022, the Applicant submitted the Referral to the Constitutional Court of the Republic of Kosovo (hereinafter in the text: the Court).
On 26 September 2022, the Court notified the Applicant and the Supreme Court of the registration of the Referral.
On 26 September 2022, the President of the Court, by Decision no. GJR. KI143/22 appointed Judge Radomir Laban as Judge Rapporteur and the Review Panel, composed of Judges: Gresa Caka-Nimani (presiding), Bajram Ljatifi and Nexhmi Rexhepi, members.
On 3 November 2022, the Court notified the Ministry of Environment, Spatial Planning and Infrastructure and Non-Governmental Organizations “Group for Legal and Political Studies” based in Prishtina and “Gjethi” (Leaf) based in Kaçanik on the registration of the referral.
On 15 December 2022, the Review Panel reviewed the preliminary report proposed by Judge Rapporteur and unanimously recommended to the Court the admissibility of the referral. On the same day, the Court decided: (i) to declare the referral admissible; (ii) to hold that there has been a 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 ECHR; (iii) to annul Judgment ARJ. UZVP. no. 51/2022, of the Supreme Court of Kosovo, of 19 July 2022; Decision [AA. no. 386/2022], of the Court of Appeals, of 26 May 2022; and Decision [3129/2021] of the Basic Court, of 12 April 2022; to remand for reconsideration Decision [A. no. 3129/2021] of the Basic Court in Prishtina, Department of Administrative Affairs, of 12 April 2022, pursuant to the Judgment of the Court; and (iii) to reject the Applicant's request for imposing of the interim measure.
On 22 December 2022, after the Court ruled regarding the case, the Non-Governmental Organization “Group for Legal and Political Studies” and the Non-Governmental Organization “Gjethi” (Leaf) submitted to the Court comments regarding the referral.
Summary of facts
As a result of the signing of the Treaty on the Establishment of the Energy Community (hereinafter in the text: the Energy Treaty) in 2005, Kosovo undertook to produce by 2020 25% of its total energy from renewable sources (Article 4 of the Decision of the Ministerial Council of the Energy Community No. D/2012/04/MC-EnC). Article 15 (Renewable Energy Targets) of Law no. 05/L-081 on Energy it was stipulated that the Government adopt the plan for reaching the target of 25% of renewable energy production. Whereas Article 3 (Mandatory and indicative target for renewable energy sources) of the Administrative Instruction no. 05/2017 on Renewable Energy Source Targets, approved by the Ministry of Economic Development in addition to the mandatory target of 25%, the indicative target of 29.89% of gross energy consumption in Kosovo from renewable sources was also set.
On 25 August 2006, the Applicant was registered with the Business Registration Agency of the Ministry of Trade (hereinafter in the text: KBRA) as a limited liability company for the exercise of activity no. 3511 for the production of electricity.
On 28 January 2016, the Directorate of Urbanism, Cadastre and Environmental Protection in the Municipality of Kaçanik issued the Decision [V-755_2016] to allow the construction of the Hydropower Plant on the Lepenc river.
The Applicant, at the then Ministry of Environment and Spatial Planning, applied for water permits for the use of water from the Lepenc river for a Hydropower Plant with a capacity of 8.5 MW. As a result of these requests, on 23 January 2007, 17 January 2013 and 6 June 2013, respectively, the Ministry of Environment and Spatial Planning by its Decisions, had issued to the Applicant: (i) a Water Permit for the Hydropower Plant “HC Lepenci”; (ii) an Environmental Permit; and (iii) approval of the water consent for the placement of pipelines adjacent to the Lepenc river.
On 13 December 2017, the Transmission System and Market Operator (KOSTT) signed an agreement with the Applicant “on the purchase of energy for generation capacities from renewable energy sources supported by the rule for the support scheme [Hydropower Plant HC Lepenci 3]”.
On 15 May 2019, the Directorate of Urbanism, Cadastre and Environmental Protection in the Municipality of Kaçanik, issued to the Applicant the Certificate of Use for the Hydropower Plant Lepenci 3.
On 5 June 2019, the Board of the Energy Regulatory Office (hereinafter in the text: ERO) issued to the Applicant the Interim License [ZRRE/Li_63/18] for the production of electricity from renewable energy sources from Hydropower Plant “Lepenci 3” with a capacity of 9.98 MW for a period of one (1) year.
On 5 June 2020, the Secretary General of the Ministry of Infrastructure and Environment based on the recommendation of the Regional Director of River Basins and on Article 71 (Procedures for the issuance of water permit) of Law no. 04/L-147 on Waters of Kosovo issued the Decision [6724-2/19-ZSP/20] on the “water permit in the Lepenc river” for the Applicant for a period of twenty (20) years (hereinafter in the text: the Water Permit Decision of 5 June 2020).
On 26 June 2020, the Secretary General of the Ministry of Economy and Environment based on paragraph 2 of Article 31 (Environmental Permit) of Law no. 03/L-025 on Environmental Protection and Administrative Instruction no. 07/2017 on Environmental Permits issued the Decision [1948-4/19] on “provision with environmental permits for Hydropower Plant Lepenci 3” for the Applicant for a period of five (5) years (hereinafter in the text: the Environmental Permit Decision).
On 3 July 2021, the Board of ERO issued to the Applicant the License [ZRRE/Li_63/20] for the production of electricity from renewable energy sources from Hydropower Plant “Lepenci 3” with a capacity of 9.98 MW for the period of forty (40) years, i.e. from 3 July 2021 to 2 July 2059 (hereinafter in the text: ERO License for the production of energy).
On 30 December 2021, the Non-Governmental Organization “Group for Legal and Political Studies”, based in Prishtina and the Non-Governmental Organization “Gjethi” (Leaf), based in Kaçanik (hereinafter in the text: the claimants/proposers), filed in the Basic Court against the Ministry of Economy and Environment:
Administrative lawsuits for annulment or invalidation of: (a) Decision [6724-19] to issue the Water Permit of 5 June 2020; and (b) Decision [1948-19] to issue the Environmental Permit of 26 June 2020; and
Proposal to postpone the execution of these two aforementioned decisions.
In their administrative lawsuit for annulment of the two (2) Decisions on Issuing Water and Environmental Permits of 5 June 2020 and 26 June 2020, respectively, filed with the Basic Court, the claimants/proposers, among others, alleged:
legal violations during the issuance of the aforementioned decisions, i.e., non-implementation of the concession procedure; lack of public discussion; the Environmental Permit of 26 June 2020 was issued in violation of the Law on Environmental Protection; the Water Permit of 5 June 2020 was issued in violation of the Law on Environmental Protection and the Law on Waters of Kosovo; and the construction of the hydropower plant has caused damage to the environment, which has resulted in the denial of drinking water and irrigation; and
erroneous determination of the factual situation during the issuance of two decisions.
Whereas regarding their proposal to postpone the execution of two (2) Decisions on the Water and Environmental Permit, respectively, the claimants/proposers based on paragraphs 2 and 6 of Article 22 of the Law on Administrative Conflicts (hereinafter in the text: LAC) alleged that: (i) the execution of the two challenged decisions would bring irreparable damage to them and would be contrary to the public interest; and (ii) the postponement of the execution of the challenged decisions would not bring huge damage to the opposing party or to the interested party.
On 6 January 2022, the Applicant filed at the Basic Court a request for intervention in the proceedings and objection to the lawsuit filed by the claimants.
On 12 January 2022, the Ministry of Economy and Environment, in the capacity of the respondent, filed at the Basic Court a response to the administrative lawsuit and requested that the request to postpone the execution of the two aforementioned Decisions be rejected.
On 13 January 2022, the Basic Court by Decision [A. no. 3129/2021] approved as grounded the Applicant's proposal to be included in the proceedings as a party of legal interest.
On the same day, the Basic Court, by (another) Decision [A. no. 3129/2021], decided to:
APPROVE the proposal of the claimants/proposers, “Group for Legal and Political Studies” - Non-Governmental Organization based in Prishtina and the Non-Governmental Organization “Gjethi” (Leaf) based in Kaçanik, as grounded.
POSTPONE the execution of the Water Permit Decision (for approval and fulfilment of the water conditions provided by the previous water permit) for the Hydropower Plant “HC Lepenci 3” with Protocol no. 6724-2/19 of 5 June 2020 and Decision on Issuance of Environmental Permit for the Hydropower Plant “Lepenci 3” for the company “Hidroenergji” L.L.C. Ferizaj with Protocol no. 1948-4/19 of 26 June 2020, the respondent, the Ministry of Environment, Spatial Planning and Infrastructure, until the court decides by final court decision, regarding the claim of the claimants.
The Basic Court in Prishtina, pursuant to paragraph 2 of Article 22 of the LAC, examining the request for postponement of the execution of the challenged decisions, held that: (i) “the claimants/proposers have provided reliable evidence that proves the fact that the execution of the decision would bring damage that would be difficult to repair, and that such postponement is not contrary to the interests of the public. This assessment of the court was based on the fact that the claimants/proposers have sufficiently argued that, based on the abovementioned provisions, the legal conditions have been met for approving the proposal of the claimants/proposers to postpone the execution of the decision, until the court finally decides on the legality of the challenged decision regarding the claimants' lawsuit in accordance with the legal provisions [paragraphs 5 and 6 of Article 22 of the LAC]”; and (ii) that this decision does not prejudice the final epilogue of this administrative conflict.
On an unspecified date, the Applicant and the Ministry of Environment, Spatial Planning and Infrastructure (hereinafter in the text: MESPI) filed an appeal with the Court of Appeals against the aforementioned Decision of the Basic Court, of 13 January 2022.
The Applicant, in the capacity of the interested party, in his appeal alleged a violation of the provisions of the Law on Contested Procedure (hereinafter in the text: LCP); erroneous and incomplete determination of the factual situation; erroneous application of the Law on Environmental Protection, the Law on Waters, and International Agreements, with a proposal that the Court of Appeals approve the appeal as grounded and annul the Decision [A. no. 3129/2021] of the Basic Court, of 13 January 2022.
On an unspecified date, the claimants/proposers filed a response to the appeal with the proposal that the appeals be rejected as ungrounded and that the Decision of the Basic Court, of 13 January 2022 be confirmed.
On 21 February 2021, the Court of Appeals by the Decision [AA.no.120/2022]: (i) approved the Applicant and MESPI's appeals as grounded; (ii) annulled the Decision [A.no. 3129/2021] of the Basic Court of 13 January 2021; and (iii) remanded the case to the Basic Court for retrial and reconsideration.
The Court of Appeals held that: (i) the Decision of the Basic Court was rendered in substantial violation of the provisions of the contested procedure from point n), paragraph 2 of Article 182 and Article 183 of the LCP, in conjunction with Article 63 of the LAC for the fact that the enacting clause of the Decision is contrary to its reasons and that there is a contradiction between what is stated in the reasons of the decision and the content of the case files: (ii) paragraph 2 of Article 22 of the LAC defines the fulfilment of the conditions cumulatively for postponing the execution of the decision, and in the current case the Basic Court has not provided sufficient reasoning regarding the fulfilment of these conditions; and (iii) it has not been ascertained whether the lawsuit was filed within the 30-day time limit set by Article 27 of the LAC, because the Applicants' request to postpone the execution of the two decisions is an integral part of their lawsuit.
The Court of Appeals found that the Basic Court in the reconsideration proceedings: (i)