Constitutional Court

KI186/22, Applicants: Malush, Sejdi, Hysni, Skender, Enver, Sherif, Mehdi, Xhevat, Qemajl and Jakup Berisha, Constitutional review of Decision  [Rev. no. 550/2021] of 6 June 2022  of the Supreme Court of the Republic of Kosovo

KI186/22, Judgment of 17 January 2024, published on 20 February 2024

Keywords: individual referral, civil-property dispute, admissible referral, right to a fair trial

The Constitutional Court of the Republic of Kosovo, on 17 January 2024, decided regarding the case KI186/22, with Applicants Malush, Sejdi, Hysni, Skender, Enver, Sherif, Mehdi, Xhevat, Qemajl, and Jakup Berisha, for the constitutional review of Decision [Rev. no. 550/2021] of 6 June 2022 of the Supreme Court of the Republic of Kosovo, in conjunction with the Judgment [Ac. no. 147/19] of 16 September 2021 of the Court of Appeals.

The Court, with seven (7) votes for and one (1) against, held that: (i) the referral is admissible; and (ii) that there has been a 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.

The circumstances of the present case were related to a property dispute regarding immovable property in the municipality of Suhareka. According to the case file it follows that  on 1 June 2001, the claimant E.B. filed a lawsuit with the Municipal Court in Suhareka for confirmation of the property right of a disputed property, where other Applicants  joined the lawsuit in capacity of  the co-claimants. On 9 March 2010, the Municipal Court in Suhareka, in the preparatory session, specified the lawsuit in terms of the value of the dispute, increasing the value of the dispute to the amount of twenty thousand (20,000) euro, in conformity with which, the payment of the difference of the tax fee was made by the Applicants.

From 2004 to 2018, the case was remanded for retrial several times. Finally, in 2018, the Branch in Suhareka of the Basic Court in Prizren, in the repeated procedure, rendered Judgment [C. no. 224/18], which approved the lawsuit of the Applicants in entirety  and confirmed that the latter are cadastral co-owners of the contested property, each to the respective ideal part. Against this Judgment, the Municipality of Suhareka, to recognize them the right of co-ownership. On 17 December 2018, the Municipality of Suhareka submitted an appeal to the Court of Appeals,  where the latter approved the appeal of the respondent, by modifying the Judgment of the Basic Court and rejecting the Applicants’ lawsuit in its entirety. The latter submitted a request for revision to the Supreme Court, which dismissed the latter as inadmissible, on the grounds that the value of the dispute in the amount of five hundred (500) German Marks, is below the value  based on which, according to the applicable law, the meritorious examination of the revision is allowed.

The Applicants before the Constitutional Court, alleged a violation of their right to a fair trial, guaranteed by Article 31 [Right to Fair and Impartial Trial] and the right to legal remedies guaranteed by Article 32 [Right to Legal Remedies] of the Constitution, because, according to them, (i) based on the request of the Municipal Court in Suhareka on 9 March 2010, the value of the dispute was specified in twenty thousand (20,000) euro, and consequently also paid the court fee difference, which was attached as evidence to the case file, whereas (ii) the Supreme Court did not examine the merits of the revision, but dismissed it as impermissible, on the grounds that the value of the dispute, according to the applicable law, was below the required value to effectively exercise this legal remedy, without properly reviewing the case file.

In assessing the Applicants’ allegations, the Court first (i) elaborated on the general principles of its case law and that of the European Court of Human Rights, regarding the principle of “access to the court”; and (ii) thereafter, applied the same to the circumstances of the present case. The Court, among other things, recalled that, in principle, the right to fair and impartial trial does not only reflect the right to initiate proceedings, but also the right to obtain a resolution of the relevant dispute from a court. In this context and according to the detailed elaborations in the Judgment, the Court assessed that the refusal of Supreme Court to examine the merits of the request for revision, without assessing the fact that the value of the respective dispute was modified during the court proceedings, constitutes an insurmountable procedural flaw which contradicts the aforementioned rights of the Constitution and the European Convention on Human Rights, because the conclusions of the Supreme Court, have resulted in the impossibility of the Applicants to have “access to court and justice”, and consequently also in the denial of the right to an effective legal remedy and judicial protection of rights.

 This translation is unofficial and serves for informational purposes only.