Constitutional Court

KI117/23, Applicant Exclusive L.L.C. Constitutional Review of the Decision [E. Rev. no. 1/2023] of 17 January 2023 of the Supreme Court of Kosovo

KI117/23, Judgment of 5 November 2024, published on 27 December 2024

Keywords: admissibility of the revision in the Supreme Court, ratione valoris threshold, right to access to court, proportionality of restriction, right to fair and impartial trial

The Constitutional Court of the Republic of Kosovo, on 5 November 2024, decided on Referral KI117/23, whereby the constitutional review of Decision [E. Rev. no. 1/2023] of 17 October 2023 of the Supreme Court of Kosovo was requested. The Court, unanimously, decided: (i) to declare the Referral admissible; (ii) to hold that the Decision [E. Rev. no. 1/2023] of 17 October 2023 of the Supreme Court of Kosovo is not in compliance with paragraph 1 of Article 31 [Right to 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 (iii) to declare the Decision [E. Rev. no. 1/2023] of 17 October 2023 of the Supreme Court of Kosovo invalid, and remand the latter for reconsideration in accordance with the Judgment of this Court.

The Judgment first explains the circumstances of the present case, which are related to a dispute initiated by the Applicant for compensation of damage by the relevant company with which it had a contractual relationship. More specifically, and as clarified in the Judgment, the Applicant had entered into a contract with the Kosovo Medicines Agency for the supply of medicines and medical consumables from the company Zdravlje Actavis, and it had received a shipment of goods from the aforementioned company according to the agreement for the import of goods from this company. However, in January 2012, the Ministry of Health of the Republic of Kosovo temporarily suspended the marketing authorization certificate for medicinal products from Serbia, on the grounds that the Certificate of Pharmaceutical Product needed to be confirmed. Consequently, and as clarified, the Applicant initiated legal proceedings, requesting appropriate compensation for damages and lost profit, also specifying the value of the dispute during the specification of the statement of claim. The Basic Court in Prishtina and the Second Instance Chamber of the Commercial Court rejected the lawsuit of the Applicant in its entirety, including the specified amount of the dispute, whereas the request for revision submitted to the Supreme Court was rejected on procedural grounds, namely on the grounds that the value of the dispute did not exceed the threshold of 3,000 euros as determined by paragraph 2 of Article 211 (no title) of Law No. 03/L-006 on Contested Procedure, despite the fact that, according to the case file, the Applicant had specified the value of the dispute during the contested proceedings in the first instance.

Before the Court, the Applicant challenges the aforementioned Decision of the Supreme Court, alleging a violation of the rights protected by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights. In essence, the Applicant claimed that the Supreme Court’s decision violated his right of “access to court” guaranteed by the above-mentioned Articles of the Constitution and the European Convention on Human Rights, inter alia, because (i) despite the fact that the value of the dispute had been determined in judicial proceedings; (ii) the Supreme Court rejected the request for revision exactly on the basis of the value of the dispute, regardless of the fact that the value had been indicated during the specification of the statement of claim.

In assessing the allegations of the Applicant and whether the latter’s right of access to the Supreme Court had been violated, the Judgment (i) elaborated the general principles of the right of access to a court developed through the case law of the European Court of Human Rights and affirmed through the case law of the Constitutional Court, including the principles and criteria related to the ratione valoris restriction on access to higher instance courts; and subsequently (ii) applied those same principles and criteria to the circumstances of the present case.

The Judgment of the Court specifically refers to the principles and criteria established by the European Court of Human Rights in the case Zubac v. Croatia, whereby the latter developed a specific test in terms of the criterion of proportionality of the restriction on access to higher instance courts as a result of the ratione valoris threshold. In applying the criteria related to the ratione valoris threshold, the Court, in the specific circumstances of the present case, assessed whether: (i) access to the Supreme Court, as a result of the ratione valoris threshold, constituted a restriction; (ii) whether this restriction pursued a legitimate aim; and (iii) whether the restriction was proportionate, and in terms of the latter, in accordance with the criteria established by the European Court of Human Rights, it assessed issues related to (a) the foreseeability of the restriction on access to court as a result of the threshold of the value of the dispute; (b) whether the Applicant or the Supreme Court should bear the consequences of errors made in the proceedings before the lower instance courts; and (c) whether the Supreme Court used “excessive formalism” in applying this restriction, to come to a conclusion regarding the proportionality of the restriction of the Applicant’s access to the Supreme Court.

The Judgment first emphasizes that the competence of the Supreme Court, provided by law, to assess the admissibility of revision in terms of the ratione valoris threshold before examining it on the merits, based on the provisions of the Law on Contested Procedure, is not disputed. Furthermore, in applying the above-mentioned criteria to the circumstances of the present case, the Judgment also highlights that, based on the very essence of the jurisdiction and competence of the Supreme Court, as the highest judicial authority, to adjudicate on the issues of legality of decisions taken by lower instance courts, the ratione valoris threshold is (i) determined by law; and (ii) pursues a legitimate aim, which serves to uphold the rule of law and the proper administration of justice.

However, in assessing whether the ratione valoris threshold (iii) was proportionate to the legitimate aim, in the circumstances of the present case, the Court, based on the case law of the European Court of Human Rights and its own case law, considered the conclusion of the Supreme Court as “excessive formalism” in interpreting and applying the law in the context of access to court, inter alia, because (a) the Supreme Court, in rejecting the Applicant’s revision as inadmissible, referred to the value of the dispute of 1,000 (one thousand) euros based on the amount of the court fee of 20 (twenty) euro paid by the Applicant when filing the lawsuit, despite Article 36 (no title) of the Law on Contested Procedure, which essentially obliges lower instance courts to act ex officio in determining the value of the dispute under the circumstances specified in the aforementioned Article; and furthermore, (b) the Supreme Court did not take into account the specification of the value of the dispute that the Applicant clarified during the first instance proceedings. Consequently, the Court found that this action of the Supreme Court was not proportionate to the legitimate aim of the legal ratione valoris threshold regarding the guarantee of the right of access to higher instance courts.

The Court also highlighted the fact that its finding of violation of paragraph 1 of Article 31 [Right to Fair and Impartial trial] of the Constitution in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights applies only to the specific circumstances of the present case, the assessment of which must be made on a case-by-case basis, and that it is related solely to the right of access to a court, namely to the Supreme Court, therefore is does not prejudice the outcome of the merits of the case in any way.

This translation is unofficial and serves for informational purposes only.