Constitutional Court

KI85/19, Applicant: Bujar Shabani, Constitutional review of Judgment E. Rev. no. 6/2019 of the Supreme Court of Kosovo, of 15 April 2019

Keywords: individual request, manifestly ill-founded, inadmissible request, interim measure, request for a hearing

The subject matter of the Referral was the constitutional review of the challenged Judgment of the Supreme Court, which  allegedly has violated the Applicant’s constitutional rights and freedoms guaranteed by Articles: 3 [Equality before the Law], 21 [General Principles ], 24 [Equality before the Law], 31 [Right to Fair and Impartial Trial], 46 [Protection of Property] and 53 [Interpretation of Human Rights Provisions] of the Constitution of the Republic of Kosovo (hereinafter: hereinafter: the Constitution) and Article 6 (Right to fair trial) and Article 1 of Protocol 1 (Protection of property) of the European Convention for the Protection of Human Rights and Freedoms (hereinafter: ECHR).

The Applicant alleges that he was not provided a  “fair trial” pursuant to Article 31 of the Constitution in conjunction with Article 6 paragraph 1 of the ECHR due to: (i) the extreme lack of reasoning of the judicial decision; (ii) arbitrary adjudication contrary to all findings of judicial financial  expertise deciding on the amount of the concerned party’s claim; (iii) failure to inform about the Revision hearing session  and also the lack of information from a judicial expert of the economic and financial field who could provide clarifications on his findings.

In this regard, the Court recalls that in terms of the right to a reasoned judicial decision guaranteed by Article 31 of the Constitution and Article 6 of the ECHR, it is the obligation of the courts to address the Applicants’ substantive arguments and the reasons provided to be based upon the applicable law. The Court found that as to the concrete allegation, the regular courts and the Supreme Court, whose Judgment is challenged in the Court, have fulfilled this obligation.

As to the second allegation, that the Supreme Court had arbitrarily decided in contradiction with all findings of financial forensic expertise deciding on the amount of the concerned party’s claim, the Court considers that the regular courts, respectively the Supreme Court, as the final instance of the regular judiciary has provided comprehensive and detailed reasons and has responded separately to each allegation raised by the Applicant in the revision.

The Court also notes that the Applicant had an effective opportunity to challenge the credibility of the evidence and to challenge its use and that he has used this opportunity during the proceedings before the first instance court, in his appeal to the Court of Appeals and in the revision before the Supreme Court. The regular courts examined his arguments based on the merits and provided reasons for their decisions. The fact that the Applicant was unsuccessful in each step does not alter the fact that he had an effective opportunity to challenge the evidence and their use.

Whereas with respect to the Applicant’s third allegation, in the circumstances of the present case the Court considers that the lack of information regarding the Revision hearing session, namely the Supreme Court’s decision on the revision being rendered solely on the basis of the case file, in the hearing of the Trial Panel it is in compliance with Article 22o of the Law on Contested Procedure and is also in line with the ECtHR case law which has direct application in the jurisdiction of Kosovo.

Finally, on the basis of the foregoing elaborations, the Court considers that in the circumstances of the present case the proceedings were fair and it has not led to a decision that is unjustified and arbitrary decision. Consequently, the Court considers that there is no violation of Article 31 of the Constitution and Article 6 of the ECHR.

In conclusion, the Court considers that the Applicant has not provided facts that would show that the decisions of the regular courts have in any way caused a constitutional violation of his rights guaranteed by Articles 24 and 46 of the Constitution.

Consequently, the Referral is manifestly ill-founded on constitutional basis and is therefore declared inadmissible pursuant to Rule 39 (2) of the Rules of Procedure.

As to the request for a hearing session, the Court recalls that it may order that a hearing be held where it believes it is necessary to clarify matters of evidence or of law. In the circumstances of the present case, this was not the case because the Court does not consider that there is any uncertainty about “the evidence or the law”’ hence it does not find it necessary to hold a hearing session.

Finally, as to the Applicant’s request for an interim measure to stop the payment of the sum owed pending the resolution of the case on the basis of its merits by this Court, this interim measure was rejected because it cannot be a subject to review, since the Referral is declared inadmissible, as manifestly ill-founded on constitutional basis.