- The Constitutional Court
Case No. KI109/20, Applicant: Hamzi and Daim Kaloshi, Constitutional review of Judgment Rev. no.122/2018 of the Supreme Court of the Republic of Kosovo, of 28 October 2019
Keywords: individual referral, compensation of damage, manifestly ill-founded claim
The subject matter of the case is the constitutional review of the challenged Judgment, which allegedly has violated the Applicants’ fundamental rights and freedoms guaranteed by Articles 31 [Right to Fair and Impartial Trial] and 54 [Judicial Protection of Rights] of the Constitution and Article 6 of the European Convention on Human Rights (hereinafter: the ECHR).
The circumstances of the present case relate to the Applicants’ statement of claim, for compensation of material and non-material damage, as a result of the death of their stepmother, in the traffic accident for which were liable the first respondent, the Insurance Company “Insig” and the second respondent – the Kosovo Insurance Bureau. The Basic Court had upheld the Applicants’ statement claim as being partially grounded, by obliging the above-mentioned respondents to jointly compensate the Applicants for non-material and material damage suffered as a result of injuries caused in a traffic accident, including : I/a non-material damage caused as a result of emotional pain due to the death of a family member/stepmother, more precisely: Hamzi Kaloshi for the death of the stepmother to be compensated in the amount of 5.000 €; Daim Kaloshi for the death of his stepmother to be compensated in the amount of 5.000 €; […]. Acting upon the respective appeals, the Court of Appeals, a fact which is confirmed also by the Supreme Court, rejected the Applicants’ statement of claim seeking to oblige the respondents to compensate them in the name of non-material damage due to the emotional pain for the death of the family member -stepmother, as ungrounded.
The Applicants challenge before the Court the findings of the regular courts, by raising allegations that in essence relate to the procedural guarantees provided by Article 31 of the Constitution in conjunction with Article 6 of the ECHR, and by placing the emphasis on the lack of reasoning of the court decision as well as on the erroneous interpretation of Article 201 of the LCT.
In its assessment, the Court found that the regular courts have fulfilled their constitutional obligation to provide a sufficient legal reasoning with respect to the Applicants’ claims and allegations. Therefore, the Court considers that the Applicants have benefited from their right to receive a reasoned court decisions, pursuant to Article 31 of the Constitution, in conjunction with Article 6 of the ECHR.
Consequently, the Applicants’ allegations for erroneous interpretation and application of the applicable law qualify as claims that fall within the category of “fourth instance” claims and as such, reflect claims at the level of legality and are not argued at the level of constitutionality. Consequently, these allegations of the Applicants are manifestly ill-founded on constitutional basis, as stipulated by paragraph (2) of Rule 39 of the Rules of Procedure.
Finally, the Court finds that the Applicants’ Referral is manifestly ill-founded on constitutional basis and therefore must be declared inadmissible, in accordance with paragraph 7 of Article 113 of the Constitution and Rule 39 (2) of the Rules of Procedure.
Hamzi and Daim Kaloshi
KI – Individual Referral
Referral is manifestly ill-founded