Constitutional Court

KI181/19, KI182/19 dhe KI183/19, Applicants: Fllanza Naka, Fatmire Lima and Leman Masar Zhubi, Constitutional review of Judgment AC-I-13-0181-A0008 of the Appellate panel of the Special Chamber of the Supreme Court of Kosovo, of 29 August 2019

KI181/19, KI182/19, KI183/19 Judgment adopted on 27 January 2021, published on 15 February 2021

Keywords: individual referral, right to be heard, right to fair and impartial trial

In the circumstances of the present case, the Applicants complained to the Special Chamber of the Supreme Court against the decision of the PAK, respectively due to their non-inclusion in the final list of employees of the SOE “Agimi” Gjakova. The Specialized Panel of the Special Chamber decided that the Applicants be included in the final list of employees with legitimate right to participate in the 20% share of proceeds from the privatization of the SOE “Agimi” Gjakova. The Appellate Panel of the Special Chamber, following an appeal by the Privatization Agency of Kosovo, without holding a hearing, modified the decision of the Specialized Panel of the Special Chamber and rejected the Applicant’s claim seeking inclusion in the final list of employees with legitimate right to participate in the 20% share from the privatization of the SOE “Agimi” Gjakova. The Applicants submitted their Referral to the Constitutional Court alleging, inter alia, a violation of Article 31 of the Constitution of the Republic of Kosovo (hereinafter: the Constitution) in conjunction with Article 6 of the European Convention on Human Rights ( hereinafter: the ECHR), due to non-holding of the hearing.

The Court has assessed the Applicants’ allegations regarding the absence of a hearing in the circumstances of their case, as one of the guarantees determined through Article 31 of the Constitution in conjunction with Article 6 of the ECHR, by basing this assessment upon the case law of the ECtHR).

In this respect, the Court has initially elaborated on the general principles stemming from its case-law and that of the ECtHR, regarding the right to a hearing, by clarifying the circumstances in which such a hearing is necessary, based, inter alia, on the Judgment of the Grand Chamber of the ECtHR, Ramos Nunes de Carvalho and Sá v. Portugal. The Court has clarified, inter alia, that (i) the absence of a party’s request for a hearing does not necessarily imply the waiver of such a right and that the assessment whether the absence of such a request implies that a party has waived that right depends on the specifics of the law and the particular circumstances of a case: and (ii) in principle, the parties are entitled to a hearing at least at one level of jurisdiction, unless “there are exceptional circumstances that would justify the absence of a hearing”, which based on the case law of the ECtHR in principle relate to cases in which “exclusively legal or highly technical matters” are examined.

In the circumstances of the present case, the Court finds that (i) the fact that the Applicants have not requested a hearing before the Appellate Panel does not imply their waiver of this right nor does it absolve the Appellate Panel of the obligation to address on its own initiative the necessity of holding a hearing; (ii) the Applicants have been denied the right to a hearing at both levels of the SCSC; (iii) the Appellate Panel did not deal with “exclusively legal or highly technical matters”, an consequently there are no “exceptional circumstances that would justify the absence of a hearing”; (iv) the Appellate Panel considered issues of “fact and law” in addition to modifying the Judgment of the Specialized Panel to the detriment of the Applicants; and (v) the Appellate Panel did not justify the “waiver of the oral hearing”. Taking into account these circumstances and other reasons given in this Judgment, the Court found that the challenged Judgment, namely the Judgment [AC-I-13- 0181-A0008] of 29 August 2019, was rendered contrary to the guarantees embodied in Article 31 of the Constitution in conjunction with Article 6 of the ECHR, regarding the right to a hearing.

The Court also stated that (i) based on the applicable law on the SCSC, the Appellate Panel has full jurisdiction to review the decisions of the Specialized Panel and, consequently, based on the case law of the ECtHR, it has the possibility of correcting the absence of a hearing at the level of the lower court, namely, the Specialized Panel; and (ii) it is not necessary to deal with the other allegations of the Applicants because they must be considered by the Appellate Panel in accordance with the findings of this Judgment; and (iii) the finding of a violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, in the circumstances of the present case relates only to the procedural guarantees for a hearing and in no way prejudices the outcome of the merits of the case.