Constitutional Court

KI 32/20, Applicant: Xhevat Meha, Constitutional review of Judgment AC-I-17-0417-A0001-A0002 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, of 10 October 2019

KI 32/20, Resolution adopted on 11 November 2020, published on 3 December 2020

Key words: individual referral, right to fair and impartial trial, equality before the law, inadmissible referral.

The circumstances of the present case relate to a dispute between the Applicant and the Privatization Agency of Kosovo regarding the fulfilment of obligations arising from a Contract signed in 2004.  The relevant Contract was terminated by the Privatization Agency of Kosovo, by a reference letter which negatively assessed the performance of the Applicant.  The latter challenged this decision of the Agency, initially in 2009.  The claim was rejected as inadmissible by both the Specialized and the Appellate Panel, for reasons mainly related to the non-representation of the Applicant by a lawyer before the Special Chamber of the Supreme Court, contrary to the provisions of the applicable law. The Applicant had submitted once again a claim against the Privatization Agency of Kosovo in 2010, seeking compensation for the relevant damage.  The Specialized Panel considered the Applicant’s claim as partially grounded and determined the relevant compensation in the amount of 8,300 Euros.  The Appellate Panel upheld the Judgment of the Specialized Panel.

The Applicant challenges before the Court the findings of the Judgment of the Specialized Panel, alleging a violation of Article 31 [Right to a Fair and Impartial Trial] of the Constitution, mainly in relation to the compensation determined by the regular courts. The Court addressed these allegations by applying the case law of the European Court of Human Rights, in accordance with which the Court, based on Article 53 [Interpretation of Human Rights Provisions] of the Constitution, is obliged to interpret the fundamental rights and freedoms guaranteed by the Constitution.

In assessing the allegations of the Applicant, the Court noted that the Applicant, beyond the reference to Article 31 of the Constitution, has not clearly and adequately reasoned how this Article may have been violated by the challenged Judgment. Therefore, the Court held that the allegations for violation of Article 31 of the Constitution fall into the category of “unsupported or unreasonable” allegations.  In the context of this category of allegations, the Court, based on paragraphs (1) (d) and (2) of Rule 39 of its Rules of Procedure and its case law, has consistently emphasized that (i) the parties have an obligation to clarify accurately and adequately present facts and allegations; and also (ii) to prove and sufficiently substantiate their allegations of violation of constitutional rights or provisions. However, the Court reviewed the essence of the Applicant’s allegations and the reasoning provided by the Specialized Panel and the Appellate Panel, respectively, and found that, in the circumstances of the present case, the proceedings in their entirety were fair and non-arbitrary.

Consequently, the Referral was declared inadmissible as manifestly ill-founded on constitutional basis, as set forth in Article 21.4 and 113.7 of the Constitution, Article 47 of the Law and Rule 39 (2) of the Rules of Procedure.