Constitutional Court

KI202/21, Applicant: “Kelkos Energy” L.L.C., Constitutional review of Judgment [ARJ. UZVP. N0. 74/21] of the Supreme Court of Kosovo, of 28 July 2021

Key words: individual referral, reasoning of court decision, procedural legitimacy, security measure, interim measure, preliminary procedure

The circumstances of the present case are related to the decisions of the Ministry of Economy and Environment (MEA) and the Energy Regulatory Office (ERO), which recognized the Applicant’s right to conduct the activity of renewable electricity generation through hydro-power plants, based on laws: no. 04/L-147 on Waters of Kosovo, no. 03/L-025 on Environmental Protection, no. 05/L-084 on the Energy Regulator and no. 05/L-085 on Electricity. However, a citizen, namely, F.S., filed a lawsuit with the Basic Court in Prishtina, challenging the legality of the above-mentioned decisions and also requesting the imposition of an interim measure, namely, the postponement of the execution of the above-mentioned decisions until the case is decided on merits.

The Basic Court had initially approved the proposal of the FS, but the Court of Appeal, after the appeal of the MEA and ERO, had remanded the case to the Basic Court. The latter had once again approved the request of FS, which was joined by two other citizens, to suspend the execution of the disputed decisions until the meritorious resolution of the case. However, the Court of Appeal, this time, overturned the decision of the Basic Court and decided in favor of the appeal of MEA and ERO, respectively, revoking the relevant temporary measure. After the request for an extraordinary review of the judicial decision in the Supreme Court, the latter rejected the decision of the Court of Appeal and left in force the decision of the Basic Court, returning to force the temporary measure, namely the suspension of the contested decisions of the MEA and ERO, until the final decision-making of regular courts regarding the legality of contested decisions.

Before the regular courts, in essence, the fulfillment of criteria of articles 10 (No title), 22 (No title) and 34 (No title) of Law No. 03/L-202 on Administrative Conflicts were disputable, namely if, (i) the claimant F.S. had active legitimacy to challenge the decisions of the MEA and ERO, including if the latter was directly affected by these decisions, and consequently, depending on this finding, the lawsuit should be dismissed or not; and if in the circumstances of the present case, (ii) the execution of the decision would bring the claimant F.S. damage that would be difficult to repair and the latter would not be against the public interest; and (iii) the postponement would not bring any great harm to the opposing party, namely the Applicant. In elaborating these issues, the opinion and reasoning of the Basic and Supreme Court differed substantially from that of the Court of Appeals.

The Applicant before the Court alleged 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, among others, as a result of the lack of a reasoned court decision, contrary to the procedural guarantees established in Article 31 of the Constitution and Article 6 of the European Convention on Human Rights, especially in the procedure conducted before the Supreme Court.

In assessing the Applicant’s allegations, the Court elaborated on the general principles of its case law and of the European Court of Human Rights regarding the reasoning of court decisions, and then applied the latter to the circumstances of the present case. In this respect, the Court concluded that the Supreme Court, beyond the description of the legal provisions, had not given sufficient reasoning regarding the criteria that must be met in order to decide on the suspension of the decisions of the MEA and the ERO, nor had examined whether the claimant had procedural legitimacy, as required by the relevant provisions of the Law on Administrative Conflicts. 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 relevant complaints by the Applicant, the Supreme Court simply approved the position of the Basic Court, not addressing any of the Applicant’s arguments.

More specifically, the Court, giving a comprehensive assessment of the circumstances of the present case, found that the challenged Judgment of the Supreme Court did not fully and clearly address (i) the decisive facts and legal conditions related to allowing the postponement of the execution of MEA and ERO decisions; and (ii) did not give a specific answer to the applicant’s allegation regarding the lack of procedural legitimacy of the claimant. Both of these aspects reflect essential and defining claims of the applicant, which, based on the case law of the Court and the European Court of Human Rights, must necessarily be addressed and reasoned by the courts, in order to respect the procedural guarantees provided by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights. Moreover, in a similar way and based on the same principles, the Court had decided in the case KI75/21. In both of these cases, KI75/21 and KI202/21, respectively, the Court has emphasized the importance that the imposition of interim measures, namely the suspension of the execution of decisions until the resolution of merits of the cases, must be reasonable, proportionate and based on a detailed reasoning of meeting the criteria defined in this context in the respective provisions of the Law on Administrative Conflicts.

The Court emphasized that its judgment was rendered only in relation to the procedure for the suspension of the challenged decisions of the MEA and ERO before the regular courts, until the latter decide on the merits of the lawsuit. The issue of the legality of the challenged decisions of the MEA and ERO is under review before the regular courts and the Court’s Judgment in this case in no way prejudges their decision-making regarding the lawsuit against the challenged decisions of the MEA and ERO.

Finally, based on the clarifications given in the published Judgment, the Court concluded that the challenged Judgment of the Supreme Court [ARJ. UZVP. No. 74/21], of 28 July 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, remanding the case for reconsideration to the Supreme Court.