Constitutional Court

KI145/19, KI146/19, KI147/19, KI149/19, KI150/19, KI151/19, KI152/19, KI153/19, KI154/19, KI155/19, KI156/19, KI157/19 and KI159/19, Applicant: Et-hem Bokshi and Others; Constitutional review of Judgment AC-I-13-0181-A0008 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on the Privatization Agency of Kosovo Related Matters of 29 August 2019

KI145/19, KI146/19, KI147/19, KI149/19, KI150/19, KI151/19, KI152/19, KI153/19, KI154/19, KI155/19, KI156/19, KI157/19 and KI159/19, Judgment of 10 December 2020, published on 29 December 2020

Keywords: individual referral, lack of hearing, violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights

The circumstances of the present case are related to the privatization of the Enterprise SOE “Agimi” in Gjakova and the respective rights of employees to be recognized the status of employees with legitimate rights to participate in the revenues of twenty percent (20%) from this privatization, as defined in Article 68 (Complaints Related to a List of Eligible Employees) of the Annex to the Law on the Special Chamber of the Supreme Court and paragraph 4 of Article 10 (Employees’ Rights) of Regulation No. 2003/13 and amended by Regulation No. 2004/45.

The Applicants were not included in the Provisional List of Employees with legitimate rights to participate in the revenues of twenty percent (20%) from the privatization of SOE “Agimi”. They individually filed complaints with the Privatization Agency of Kosovo. These complaints were rejected. Consequently, the Applicants initiated a lawsuit in the Specialized Panel of the Special Chamber of the Supreme Court, challenging the Decision of the Privatization Agency of Kosovo regarding the determination of facts and interpretation of law, also claiming that they had been discriminated against. All the Applicants requested to hold a hearing before the Specialized Panel.

The Specialized Panel rejected the request for a hearing on the grounds that “the facts and evidence submitted are quite clear”, entitling the Applicants, with the exception of two of them, and finding that they had been discriminated against, therefore they should be included in the Final List of the Privatization Agency of Kosovo. Acting on the basis of the appeal of the Privatization Agency of Kosovo against this Judgment, in August 2019, the Appellate Panel rendered the challenged Judgment, which approved the appeal of the Privatization Agency of Kosovo and modified the Judgment of the Specialized Panel, removing “from the list of beneficiaries of 20% from the privatization process of SOE “Agimi” Gjakova”, all Applicants. The Applicants challenge this Judgment before the Court, claiming that it was rendered in violation of Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 46 [Protection of Property] of the Constitution and Articles 6 (Right to a fair trial) and 1 (Protection of Property) of Protocol No. 1 of the European Convention on Human Rights. With regard to the violations of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, the Applicants allege that the Appellate Panel modified the Judgment of the Specialized Panel, (i) without a hearing; (ii) without sufficient reasoning; (iii) in an arbitrary interpretation of law; and (iv) in violation of their right to a trial within a reasonable time.

In assessing the Applicants’ allegations, the Court focused on those related to the absence of a hearing before the Special Chamber of the Supreme Court, and in this context, (i) first elaborated on the general principles regarding the right to a hearing, as guaranteed by the Constitution and the European Convention on Human Rights; and subsequently, (ii) applied the latter to the circumstances of the present case. The Court, based, inter alia, on the Judgment of the Grand Chamber of the European Court of Human Rights, Ramos Nunes de Carvalho and Sá v. Portugal, clarified the key principles relating to (i) the right to a hearing in the first instance courts; (ii) the right to a hearing in the second and third instance courts; (iii) the principles on the basis of which it should be determined whether a hearing is necessary; and (iv) whether the absence of the first-instance hearing can be corrected through a higher-instance hearing and the relevant criteria for making that assessment. Furthermore, the Court specifically examined and applied the case law of the European Court of Human Rights on the basis of which it is assessed whether the absence of a request for a hearing can be considered as an implicit waiver of such a right by the parties.

Based on these principles, 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 European Convention on Human Rights, regarding the right to a hearing, inter alia, because (i) the fact that the Applicants did not request a hearing before the Appellate Panel does not imply their waiver of this right nor does it exempt 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 instances of the Special Chamber of the Supreme Court; (iii) the Appellate Panel did not address “exclusively legal or highly technical matters”, the issues on the basis of which “extraordinary circumstances that could justify the absence of a hearing” could have existed; (iv) The Appellate Panel considered issues of “fact and law”, which, in principle, require holding of a hearing; and (v) the Appellate Panel did not reason the “waiver of  oral hearing”.

Therefore, the Court found that the abovementioned Judgment of the Supreme Court should be declared invalid, and be remanded for reconsideration to the Appellate Panel of the Special Chamber of the Supreme Court. The Court also emphasized the fact that its finding of a violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, in the circumstances of the present case, relates exclusively to the absence of a hearing, and does not in any way correlate nor prejudice the outcome of the merits of the case.