Constitutional Court

KI220/19, KI221/19, KI223/19 and KI234/19, Applicant: Sadete Koca Lila and others; Constitutional review of Judgment AC-I-13-0181-A0008 of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters of 29 August 2019

KI220/19, KI221/19, KI223/19 and KI234/19, Judgment of 25 March 2021, published on 8 April 2021

Key words: individual referral; absence 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 relate to the privatization of the socially-owned enterprise SOE “Agimi” in Gjakova and the rights of the respective employees to be recognized as employees with legitimate rights to participate in the twenty percent (20%) income from this privatization, as defined in Article 68 (Complaints Related to a List of Eligible Employees) of the Annex to the Law on Special Chamber of the Supreme Court, and paragraph 4 of Section 10 (Rights of Employees) of Regulation no. 2003/13 as amended by Regulation no. 2004/45.

The Applicants were not included in the Provisional List of employees eligible to a share of proceeds of the twenty percent (20%) from the privatization of the SOE “Agimi”. The latter filed individually complaints with the Privatization Agency of Kosovo. These complaints were rejected. As a consequence, the Applicants initiated a claim with 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 alleging that there were discriminated against. All 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”, giving the right to the Applicants, except for two of them, and concluding 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, whereby it approved the appeal of the Privatization Agency of Kosovo and modified the Judgment of the Specialized Panel, removing from “the list of beneficiaries of the 20% from the privatization process of SOE “Agimi” Gjakova” all the Applicants. The Applicants challenge this Judgment before the Court, alleging that it was issued 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 the law; and (iv) in violation of their right to a trial within a reasonable time limit.

In assessing the allegations of the Applicants, the Court focused on those allegations related to the absence of a hearing before the Special Chamber of the Supreme Court, and in this context, (i) the Court first elaborated the general principles regarding the right to a hearing as guaranteed by the Constitution and the European Convention on Human Rights; and thereafter, (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 courts of first instance; (ii) the right to a hearing in courts of second and third instance; (iii) the principles on the basis of which it should be determined whether a hearing is necessary; and (iv) whether the absence of a hearing in the first instance can be corrected through a hearing on a higher instance and the relevant criteria to make this 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.

After applying these principles, the Court found that the challenged Judgment, namely the Judgment [AC-I-13-0181-A0008] of the Appellate Panel of the Special Chamber of the Supreme Court, of 29 August 2019, was issued contrary to the guarantees embodied in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, as regards 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 relieve 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 Special Chamber of the Supreme Court; (iii) the Appellate Panel had not dealt with “exclusively legal or highly technical matter”, based on which “extraordinary circumstances that could justify the absence of a hearing” could have existed; (iv) The Appellate Panel, in fact, had reviewed matters of “fact and law”, the review of which, in principle, requires a hearing; and (v) the Appellate Panel did not justify “waiving the oral hearing”.

Consequently, the Court found that the above mentioned Judgment of the Supreme Court must be declared invalid, and remanded for retrial 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 in no way prejudices the outcome of the merits of the case.

Whereas regarding the Referrals of Applicants of Referrals KI221/19 (Muhamet Domi) and KI234/19 (Fikrije Nuka), the Court rejected these Referrals as manifestly ill-founded as specified in Rule 39 (2) of the Rules of Procedure, because they did not provide any evidence that their complaints have been excluded from the assessment procedure at the SCSC.