Constitutional Court

KI177/19, Applicant: NNT “Sokoli”, Constitutional review of Decision Ac. No. 2386/2018 of the Court of Appeals of Kosovo of 17 May 2019

KI177/19, Judgment of 29 March 2021, published on 19 April 2021

Keywords: Individual referral, right to fair and impartial trial, admissible referral, violation of constitutional rights 

The Applicant challenged before the Court Decision Ac. No. 2386/2018 of the Court of Appeals of Kosovo, of 17 May 2019, in conjunction with Decision Cp. No. 200/2016 of the Basic Court in Prishtina, of 13 April 2018. 

From the case file it resulted that the Applicant entered into a Contract with the Company “Kujtesa Net” l.l.c., according to which the Applicant had to build the optical and coaxial cable network in the territory of the Republic of Kosovo, for the needs of the Company “Kujtesa Net” L.l.c., and which would pay for the services performed. Since “Kujtesa Net” l.l.c. had not fulfilled the obligations arising from this contract, the Applicant initiated enforcement proceedings against “Kujtesa Net” l.l.c., which was approved by the Basic Court in Prishtina. The company “Kujtesa Net” l.l.c. filed an objection against the Decision of the Basic Court in Prishtina and the Basic Court rejected the objection as ungrounded. After the complaint of the Company “Kujtesa Net” l.l.c.. against the Decision of the Basic Court in Prishtina, the Court of Appeals approved the appeal and remanded the case for retrial to the Basic Court in Prishtina. The Basic Court, acting on the retrial, approved as grounded the objection of the Company “Kujtesa Net” l.l.c. and completely repealed the decisions of the Basic Court in Prishtina, which allowed enforcement. This decision of the Basic Court was mainly based on the findings made by the Court of Appeals. Following the Applicant’s appeal to the Court of Appeals against the Decision of the Basic Court, the Applicant also submitted a request for recusal of Judge H.Sh. from the review of the Applicant’s case. The Court of Appeals, by Decision Ac. No. 2368/2018, of 17 May 2019, rejected as ungrounded the Applicant’s appeal. The Court of Appeals did not deal at all with the Applicant’s request for recusal of Judge H.Sh. from the review of the case. In both cases when the Applicant’s case was adjudicated in the Court of Appeals Judge H.Sh. tried as the sole judge.

The Applicant alleged before the Court that his constitutional rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 of the ECHR, have been violated. According to the Applicant, by the challenged decision three principles have been violated which are guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution, namely: (i) the decision was rendered by a partial court; (ii) that decision does not address the Applicant’s substantive allegations; and (iii) the enforcement proceedings in this case have been delayed.

The Court considered that the Applicant’s first allegation, regarding the violation of the principle of impartiality of the court, is closely related to the allegation of lack of reasoning of the decision of the Court of Appeals. Therefore, the Court dealt with the first two allegations together, in order to proceed with the next allegation regarding the length of the proceedings.

Regarding the allegation of violation of the principle of impartiality of the court which is closely related to the allegation of lack of reasoning of the decision of the Court of Appeals, the Court found that failure to address the Applicant’s request for recusal of Judge H.Sh. from decision-making procedure before this court, as well as the lack of reasoning of the decision by the Court of Appeals regarding his allegation of impartiality of Judge H.Sh., raised by him in his appeal, constitutes an insurmountable flaw of the judgment – within the meaning of Article 31 of the Constitution, in conjunction with Article 6 of the European Convention on Human Rights.

The Court found that the Decision of the Court of Appeals contains violation of Article 31 of the Constitution, in conjunction with Article 6 of the ECHR, as a result of the lack of judicial reasoning by the Court of Appeals.

With regard to the Applicant’s allegation of delay of the proceedings, the Court found that regarding the Applicant’s allegation of delay of the proceedings, the Applicant has not sufficiently substantiated his allegation of violation of the right to a trial within a reasonable time, because the facts presented by him do not substantiate that the regular courts have denied him this constitutional right.

The Court found that the Decision Ac.no.2386/2018 of the Court of Appeals of Kosovo, of 17 May 2019, is invalid and must be remanded for retrial