Constitutional Court

KI177/22, Applicant: Pashk Bibaj, Constitutional review of Judgment AC-II-21-0058 of the Appellate Panel of the Special Chamber of the Supreme Court on the Privatization Agency of Kosovo Related Matters, of 23 October 2022

KI177/22, Judgment of 4 September 2024, published on 24 September 2024

Key words: individual referral, right to fair and impartial trial, admissible referral, adversarial principle, right to application for oral proceedings, violation of constitutional rights

The Constitutional Court of the Republic of Kosovo, on 4 September 2024, decided on Referral KI177/22, whereby the constitutional review of the Judgment [AC-II-21-0058] of the Appellate Panel of the Special Chamber of the Supreme Court on the Privatization Agency of Kosovo Related Matters, of 23 October 2022, was requested. The Court unanimously decided (i) to declare the Referral admissible; (ii) to hold that Judgment [AC-II-21-0058] of 23 May 2022, is not in compliance with paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights; (iii) to declare invalid the Judgment [AC-II-21-0058] of 23 May 2022, of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters; (iv) to remand the Judgment [AC-II-21-0058] of 23 May 2022, of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo for retrial in accordance with the findings of the Judgment of the Court;

The Judgment initially clarifies that the circumstances of the present case are related to the fact that the Applicant and the Agricultural Cooperative “SH.A. Bec” in 2001 had concluded an immovable properties sale and purchase contract, properties of “SH.A. Bec”, which they registered in the Municipal Court in Peja on 14 March 2002. On 3 March 2005 and 5 July 2006, the Kosovo Trust Agency submitted a request to the Cadastral Office in Gjakova for non-registration of immovable properties in the name of the Applicant. On 28 April 2016, the Privatization Agency of Kosovo filed a lawsuit with the Basic Court in Gjakova, whereby it requested the annulment of the sale and purchase contract and the handover of the immovable properties in the possession of the Privatization Agency of Kosovo, on the grounds that the sale and purchase contract was concluded and certified in violation of the legal provisions in force and contrary to the rules for the sale of assets of socially owned enterprises. The Applicant, in his response to the lawsuit filed by the Privatization Agency of Kosovo, objected the lawsuit in its entirety, claiming that the sale and purchase contract was concluded in accordance with the provisions of the Law on Contracts and Torts.

On 2 August 2019, the Basic Court decided to reject the lawsuit of the Privatization Agency of Kosovo as ungrounded, on the grounds that the applicant “is a buyer of immovable property which is the subject of the contract”.  The Privatization Agency of Kosovo, on 16 September 2019, submitted an appeal to the Court of Appeals against the judgment of the Basic Court, due to essential violations of the provisions of the contested procedure. On 28 September 2021, the Court of Appeals forwarded the case file to Special Chamber of the Supreme Court, considering that the latter has subject matter jurisdiction to decide on the appeal of the Privatization Agency of Kosovo. From the case file, it turns out that the Court of Appeals, when submitting the case file to the Special Chamber of the Supreme Court, (i) did not include the Applicant’s response to the appeal of the Privatization Agency of Kosovo; and that (ii) the Applicant was not notified of the transfer of his case to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo. As a result of the transfer of the case to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, the latter, after confirming its subject matter jurisdiction related to the claim of the Privatization Agency of Kosovo, approved the appeal of the Privatization Agency of Kosovo as founded and amended the Judgment [C. No. 210/16] of the Basic Court, of 2 August 2019.

The Applicant before the Court contested the aforementioned Judgment of the Appellate Panel of the Special Chamber of the Supreme Court, alleging violations of his rights protected by Article 31 [Right to Fair and Impartial Trial] in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, and Article 32 [Right to Legal Remedies] of the Constitution. The Applicant claimed that these rights were violated because, as a result of the judicial authorities’ failure to notify him of the transfer of his case to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, he (i) was unable to present evidence in his favor; and (ii) was also unable to submit an application for oral proceedings before this court instance.

In this regard, the Court assessed that his claims are related to the principle of adversarial proceedings in court proceedings and his right to be heard, as an integral part of the right to a fair and impartial trial, guaranteed by paragraph 1 of article 31 of the Constitution, in conjunction with paragraph 1 of article 6 of the European Convention on Human Rights. Consequently, the Court clarified that it focused on the Applicant’s claim to an application for oral proceedings before the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, as provided by the provisions of the Law on the Special Chamber of the Supreme Court of Kosovo.

In assessing the Applicant’s claims, the Court first elaborated on the principles of its own case law and that of the European Court of Human Rights concerning the principle of adversarial proceedings and the right to application for oral proceedings, and then applied the same principles to the circumstances of the present case.

Based on this, the Court further assessed that: (i) pursuant to Article 69 (Oral Appellate Proceedings) of the applicable Law on the Special Chamber of the Supreme Court of Kosovo, the Applicant has the right to submit to the Appellate Panel an application for oral proceedings, through which he, in the sense and in accordance with the principle of adversarial proceedings, has the right to present his arguments and evidence related to the claim of the Privatization Agency of Kosovo; (ii) however, such an application was impossible for the Applicant to make because he was not notified of the transfer of his case from the Court of Appeals to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, either by the Court of Appeals or by the Appellate Panel itself.

According to the clarifications provided in the published Judgment, the Court held that through the contested Judgment of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, as a result of the denial of the right to submit an application for oral proceedings, the Applicant’s right to fair and impartial trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, was violated. Based on this finding, the Court emphasized that the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, in the retrial procedure, and in light of the Applicant’s right to be heard, must enable the Applicant to present all his arguments regarding matters of law and fact, including providing him the opportunity to present new evidence.

This translation is unofficial and serves for informational purposes only.