Constitutional Court

KI74/19, Applicant „Suva Rechtsabteilung”, Constitutional review of Judgment E. Rev. No. 39/2018 of the Supreme Court of Kosovo of 8 January 2019 

KI 74/19, Judgment of 28 April 2021, published on 09.01.2021

Keywords: Individual referrals, legal person, admissible referral, challenged decision in accordance with constitutional provisions.

As a consequence of the accident that was caused by the insured of the insurance company EUROSIG in 2010, the insured of the Applicant M.H. suffered material damage. The Applicant sent a request to EUROSIG, seeking compensation for damages based on regress, which occurred as a result of the above-mentioned traffic accident. At this request, the Applicant received an offer from EUROSIG which, according to the Applicant, did not cover the damage caused by the traffic accident which occurred through the fault of the EUROSIG insured. The Applicant filed a lawsuit against EUROSIG with the Basic Court in Prishtina, requesting that he be paid a certain amount of money, including the penalty interest of 20%, from the day the lawsuit was filed until 29 July 2011. while from 29 July 2011 until the final payment requested the penalty interest of 12%. The Basic Court in Prishtina rendered Judgment approving the Applicant’s lawsuit in entirety. However, the Court of Appeals partially modified the judgment of the Basic Court only in the part concerning the penalty interest. The Supreme Court upheld in entirety the judgment of the Court of Appeals.

The Applicant claimed that the Judgment of the Court of Appeals as well as the Judgment of the Supreme Court were rendered in violation of its rights to a reasoned decision, which also caused a violation of the principle of legal certainty. According to the Applicant, these violations occurred due to the fact that the Supreme Court in its judgment did not provide a sufficient and adequate reasoning for the change of position regarding the calculation of penalty interest, which position it had consistently applied in its case law.

With regard to the allegations of violation of the principle of legal certainty, the Court found: (i) that in the present case the existence of “profound and long-standing” differences regarding the consistency of the case law of the Supreme Court has not been established; (ii) that there is a mechanism for the proper administration of justice and for reviewing differences in case law (see Law on Courts No. 06/L-054, Article 14. 2.10); (iii) that the Supreme Court, on 1 December 2020, issued a “Legal Opinion on interest in terms of applicable law, amount and calculation period” pursuant to Article 14.2.10 of the Law on Courts; (iv) that the possibility of contradictory decisions is an inherent trait of any judicial system based on a network of basic and appellate courts with powers within its territorial jurisdiction; (v) and what law should be applied in the circumstances of the present case is the prerogative and duty of the Supreme Court; and (vi) that the role of the Supreme Court is precisely to resolve such disputes.

With regard to the allegations of violation of the right to a reasoned decision, the Court found that (i) the Supreme Court declared the legal basis and explained why in the Applicant’s case the norm which determines the “simple” penalty interest paid for time savings funds for a period longer than one year without a specific destination is applied; (ii) that the challenged judgment of the Supreme Court contains the logical connection between the legal basis, the reasoning and the conclusions drawn; (iii) that, as a logical flow between the legal basis, reasoning and conclusions, it resulted that the challenged judgment of the Supreme Court meets the criteria of a reasoned decision; and (iv) the question whether the Applicant has been recognized the right to a “qualified” penalty interest of 12% or to a “simple” interest which is paid on deposited funds with a term longer than one year without a specific destination, is a matter of application and interpretation of the law and the discretion of the Supreme Court in the trial, which, as such, is not in itself contrary to the right to a fair and impartial trial.

The Court found that in the circumstances of the present case there has been no violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (1) (Right to a fair trial) of the ECHR.