Constitutional Court

KI121/19 Applicant: Ipko Telecomunications, Constitutional review of Judgment ERev. No. 14/2019 of the Supreme Court of Kosovo, of 30 April 2019

KI121/19 Resolution on Inadmissibility of 29 July 2020, published on 17 August 2020

Keywords: Individual referral, contractual obligation, inadmissible referral, manifestly ill-founded referral

The Referral was submitted by Ipko Telecomunications, represented by the Law Firm “Sejdiu & Qerkini” l.l.c.

The Court notes that, in the circumstances of the present case, the substantive issue relates to the allegation of the existence of a contractual obligation, namely a debt, for which the Applicant alleges that it was not paid by the respondent, Dukagjini l.l.c. The Applicant alleges that this debt should be paid to Dukagjini l.l.c, because it derives from the bid made by the Applicant to the company Dukagjini l.l.c, through which the Applicant offered to build the infrastructure , system and virtual network maintenance. The offer in question was never accepted, expressly, by the company Dukagjini l.l.c. In this regard, the Applicant alleges that the company Dukagjini l.l.c, through conclusive actions – specifically by accepting invoices and not responding to the Applicant’s offer, namely in silence – has accepted the offer in question and is therefore obliged to pay the debt in the amount of € 2,366,675.47. In view of this, the Applicant alleges that the Supreme Court made erroneous interpretation of law, namely Article 39.2 of the Law on Obligational Relationship (hereinafter: the LOR), on the grounds that “exactly this article determines the possibility of concluding the contract with conclusive actions and does not require the express declaration of the offeree for the acceptance of the bid”.

In this regard, the Applicant alleges that the challenged Decision of the Supreme Court violates his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 [Right to a fair trial] of the ECHR, where he mainly states that the Supreme Court has not sufficiently reasoned its decision and made arbitrary legal interpretations.

With regard to the Applicant’s allegations concerning the lack of reasoning of the court decisions in his case, the Court notes that it already has a consolidated case law with regard to the right to a reasoned court decision guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR. This case law was built based on the ECtHR case law, including, but not limited to cases: Van de Hurk v. the Netherlands, Judgment of 19 April 1994; Hiro Balani v. Spain, Judgment of 9 December 1994; Higgins and Others v. France, Judgment of 19 February 1998; Garcia Ruiz v. Spain, Judgment of 21 January 1999; Hirvisaari v. Finland, Judgment of 27 September 2001; Suominen v. Finland, Judgment of 1 July 2003; Buzescu v. Romania, Judgment of 24 May 2005; Pronina v. Ukraine, Judgment of 18 July 2006; and Tatishvili v. Russia, Judgment of 22 February 2007. In addition, the fundamental principles regarding the right to a reasoned court decision have also been elaborated in the cases of this Court, including but not limited to cases KI97/16, Applicant “IKK Classic”, Judgment of 9 January 2018; KI72/12, Veton Berisha and Ilfete Haziri, Judgment of 17 December 2012; KI22/16, Naser Husaj, Judgment of 9 June 2017; and KII43/16, Muharrem Blaku and Others, Resolution on Inadmissibility of 13 June 2018. In principle, the case law of the ECtHR and that of the Constitutional Court emphasize that the right to a fair trial includes the right to a reasoned decision and that the courts must “show with sufficient clarity the grounds on which they based their decision”. However, this obligation of the courts cannot be understood as a requirement for a detailed answer to any argument. The extent to which the obligation to give reasons may vary depending on the nature of the decision and must be determined in the light of the circumstances of the case. The essential arguments of the Applicants are to be addressed and the reasons given must be based on the applicable law.

Therefore, the Court considers that the courts have fulfilled their constitutional obligation to provide a sufficient legal reasoning with respect to the Applicant’s claims and allegations. Consequently, the Court considers that the Applicant has exercised his right to receive reasoned court decisions, in accordance with Article 31 of the Constitution, in conjunction with Article 6 of the ECHR.

In the light of the interpretations and reasoning given in the decisions of the regular courts, the Court considers that the Referral does not prove that the proceedings before the Supreme Court and the lower instance courts were unfair or arbitrary, or that the fundamental rights and freedoms of the Applicant, protected by the Constitution, have been violated as a result of erroneous interpretations of law.

Therefore, taking into account the circumstances of the case, the allegations raised by the Applicant and the facts presented by him, the Court, also based on the standards set in its case law in similar cases and the case law of the ECtHR- holds that the Applicant has not proved and has not sufficiently substantiated his allegations that the proceedings before the regular courts were in any way unfair or arbitrary and that through the challenged Judgment the rights and freedoms guaranteed by Article 31 of the Constitution and Article 6 of the ECHR have been violated.