Constitutional Court

KI14/22, Applicant: Shpresa Gërvalla, Constitutional review of Judgment [Rev. no. 409/2020] of the Supreme Court of the Republic of Kosovo of 28 September 2021 

KI14/22, Judgment of 23 February 2023, published on 7 April 2023

Keywords: individual referral, court established by law, exceeding the jurisdiction defined by law

The circumstances of the present case are related to the Applicant’s lawsuit “for the injury suffered at the workplace” and for compensation for non-material damage, who during the time she was employed as a cashier of the division of the Energy Corporation of Kosovo, on 18 November 2011, during working hours, fell on the stairs of the Raiffeisen Bank facility in Fushë-Kosovë and suffered bodily injuries.

On an unspecified date, the Applicant filed a lawsuit against Raiffeisen Bank with the Basic Court in Prishtina, by which she sought compensation for bodily injury. The Basic Court partially approved the Applicant’s lawsuit “for the injury suffered at the workplace” and for compensation for non-material damage, while rejecting the other part of the lawsuit. The judgment of the Basic Court was upheld by the Court of Appeals. However, as a result of the revision submitted by Raiffeisen Bank to the Supreme Court, the latter approved the revision as grounded and modified the judgments of the Court of Appeals and the Basic Court, rejecting as ungrounded the Applicant’s claim on the grounds of (i) erroneous application of substantive law by the Basic Court and the Court of Appeals, namely Articles 173 (Presumption of Causality) and 174 (Who is liable for Injury or Loss) in conjunction with paragraph 1 of Article 192 (Divided Liability) of the Law on Obligational Relationships (promulgated on 30 March 1978); (ii) erroneous determination of factual situation, reasoning that the Applicant was performing her duties as a cashier of the KEK Division; and that in the present case (iii) the liability of Raiffeisen Bank was not proven in relation to the injuries sustained by the Applicant.

The Applicant before the Court claimed that her fundamental rights and freedoms guaranteed by Articles 3 [Equality Before the Law ] and 24 [Equality Before the Law] of the Constitution of the Republic of Kosovo in conjunction with Article 14 (Prohibition of discrimination) of the European Convention on Human Rights were violated as well as articles 31 [Right to Fair and Impartial Trial] and 54 [Judicial Protection of Rights] of the Constitution in conjunction with articles 6 (Right to a fair trial) and 13 (Right to an effective remedy) of the European Convention on Human Rights, because: (i) the challenged judgment of the Supreme Court constitutes an adjudication of the case related to erroneous or incomplete determination of factual situation, for which the revision is not allowed; and that (ii) the Supreme Court in this case should have remanded the case to the lower instance court as specifically established in the applicable law. From the aforementioned allegations of the Applicant, it follows that the issues raised in her referral are related to exceeding the jurisdiction provided by law by the Supreme Court, which allegations are essentially related to the criterion of the right to a “court established by law”, guaranteed by paragraph 2 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of the European Convention on Human Rights.

In assessing the Applicant’s allegations, the Court initially elaborated and then applied in the present case (i) the general principles of its case law and that of the European Court on Human Rights regarding the principle of a “court established by law”; and (ii) the relevant provisions of the Law on Contested Procedure that relate to the jurisdiction and decision-making of the Supreme Court in the revision procedure, according to which, among other things, a court cannot decide outside its jurisdiction defined by law.

In applying these principles, the Court initially found that the Supreme Court had jurisdiction to decide on the revision of the responding party. However, within the meaning of paragraph 2 of Article 224 [no title] of the Law on Contested Procedure, this provision refers to the jurisdiction of the Supreme Court in the context of its decision-making, in which case when the court of revision finds that, due to the erroneous application of substantive law or due to violations of procedural rules, the factual situation has not been completely determined and therefore the requirements for modification of the challenged judgment do not exist, the Supreme Court should have remanded the case to the lower instance courts for retrial.

As a result of the decision of the Supreme Court to quash the judgments of the lower instances and rejection the Applicant’s claim without remanding the case for retrial, the latter has violated the principle of a “court established by law”. Moreover, in terms of the guarantees stipulated by paragraph 2 of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, which guarantees are also related to the principle of legal certainty and the proper administration of justice, remanding the case for retrial would have enabled the litigants, and in particular the Applicant, that in accordance with the principle of adversariality, guaranteed by Article 31 of the Constitution, in conjunction with Article 6 of the ECHR, to have the opportunity to present their submissions and arguments regarding the case.

Finally, based on the clarifications given in the published Judgment, the Court found that the Judgment of the Supreme Court [Rev. no. 409/2020] of 28 September 2021, is not in compliance with Article 31 [Right to Fair Trial and Impartial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights and contrary to the principle of a “court established by law”,  as the Supreme Court has exceeded its jurisdiction established in paragraph 2 of Article 224 of the Law on Contested Procedure, not remanding the case for reconsideration to the lower instance courts, in accordance with the provisions of the applicable law. This Judgment is supplemented also with a dissenting opinion.