Constitutional Court

KI23/24, Applicant: Agim Zogaj, Constitutional review of the Judgment [AC-I-21-0836-A0001] of the Appellate Panel of the Special Chamber of the Supreme Court on the Privatization Agency of Kosovo Related Matters, of 26 October 2023

KI23/24, Judgment, of 17 July 2024, published on 05 September 2024

Key words: individual referral, admissible referral, violation of the right to a fair and impartial trial, lack of reasoning of decision, failure to hold a hearing

The Constitutional Court of the Republic of Kosovo, on July 17, 2024, decided on the Referral KI23/24, through which the constitutional review of the Judgment [AC-I-21-0836-A0001] of 26 October 2023 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo was requested. The Court, unanimously, decided to (i) declare the referral admissible; (ii) the Judgment [AC-I-21-0836-A0001] of 26 October 2023 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo is not in compliance with Article 31 [Right to a Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights; and that (iii) the Judgment [AC-I-21-0836-A0001] of 26 October 2023 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo should be declared invalid and remanded for retrial  to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, in accordance with the Judgment of this Court. 

Initially, the Judgment clarifies that the circumstances of the specific case are related to the applicant’s request submitted to the Liquidation Authority of the Kosovo Privatization Agency, for the compensation of unpaid wages for the period October 2003 – June 2014, as an employee of “Auto Prishtina” SOE. After his request was rejected on the grounds that it was time-barred, the applicant filed a lawsuit with the Special Chamber of the Supreme Court of Kosovo against the Kosovo Privatization Agency and “Auto Prishtina” SOE, through which he requested that his right to compensation be recognized for unpaid wages for the above-mentioned time period. On 15 November 2021, the Special Chamber of the Supreme Court of Kosovo through the Judgment approved the claim of the applicant and also decided not to hold a hearing. The Liquidation Authority of the Kosovo Privatization Agency submitted an appeal to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, against the Judgment of the Special Chamber of the Supreme Court of Kosovo, due to the erroneous assessment of the factual and legal situation, against which subsequently, the applicant filed a response to the appeal. On 26 October 2023, the Appellant Panel of the Special Chamber of the Supreme Court of Kosovo, through the Judgment, evaluated the appeal of the Liquidation Authority of the Kosovo Privatization Agency as well-founded and modified the Judgment of the first instance, thus rejecting the claim of the applicant, on the grounds that according to the provisions of Law No. 04/L-077 on Obligation Relations, his request was time-barred. Also, through the aforementioned Judgment, the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo decided not to hold a judicial hearing session.

In the following, the Judgment clarifies that the applicant, in his request submitted to the Court, alleged that through the contested Judgment of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, his right guaranteed by Article 31 [Right to a fair and impartial Trial] of the Constitution has been violated, as a result of the erroneous application of the law, which essentially coincides with (i) non-reasoning of the judicial decision; and (ii) failure to hold the hearing.

In assessing the applicant’s allegations, the Court first elaborated the principles of its case-law and of the European Court of Human Rights regarding the reasoned judicial decision and the holding of the hearing, and then applied the same to the circumstances of the concrete case. Firstly, regarding the applicant’s claim for violation of the right to a fair and impartial trial, due to the non-reasoning of the court decision, the Court found that through the aforementioned Judgment, the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo had not sufficiently elaborated how the statute of limitation had been reached for the last 3 (three) years before the filing of the lawsuit, namely for the years 2011-2014. In this aspect, the Court found that the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo provided a general conclusion and insufficient reasoning regarding the statute of limitation of the claim of the applicant, respectively the lack of providing any evidence on the termination of the statute of limitation and the invalidity of the list of 12 September 2014, which evidence, in other cases similar to those of the applicants, the Special Chamber of the Supreme Court of Kosovo had accepted as valid. Secondly, regarding the allegation of the applicant for not holding the judicial hearing, the Court, applying the principles which derive from its case-law and that of the European Court for Human Rights, emphasized that, in principle, the holding of the hearing in at least one of the judicial instances is a constitutional obligation. While the exceptions to this principle are possible, the circumstances of the concrete case do not correspond to the possibility of this exception, and consequently, according to the clarifications given in the Judgment, there were no circumstances which could justify the absence of the hearing.

As a result and based on the clarifications given in the published Judgment, the Court found that through the contested Judgment of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, as a result of non-reasoning of the court decision and not holding the hearing, the applicant’s right to a fair and impartial trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 (Right to fair trial) of the European Convention on Human Rights was violated.