Constitutional Court

KI212/21, Applicant: Behar Emini, Constitutional review of Decision Rev. no. 382/2021 of the Supreme Court of Kosovo, of 22 September 2021

KI212/21, Judgment of 22 May 2023, published on 22 June 2023

Keywords: individual referral, court established by law, compensation for expropriated property, urgent procedure, violation of the right to property 

The circumstances of the present case are related to the Applicant’s statement of claim initiated in a non-contentious procedure for the determination of compensation because of the immovable property expropriated by the Municipal Assembly of the Municipality of Gjilan.  

On 29 June 1995, the Assembly of the Municipality of Gjilan decided on the expropriation with the right to compensation for the immovable property for the construction of a circular road in the Municipality of Gjilan, part of which immovable property was in the possession of the Applicant’s legal predecessor. The Basic Court by Judgment [C.no. 11/2009] of 25 February 2013 confirmed the right of ownership in the name of the Applicant related to the said immovable property and as a result, the non-contentious procedure regarding the compensation because of the expropriation, had started. The Basic Court, by Decision [No. 109/2008] of 11 March 2014 determined the compensation for the already expropriated immovable property in the name of the Applicant, which was also upheld by the Court of Appeals. However, because of the Decision [Rev. No. 73/2015] of 20 April 2015 of the Supreme Court, which approved the revision of the Municipality of Gjilan, the case was remanded to the Basic Court with the recommendation for the assessment of the amount by a relevant expertise in accordance with the law. The latter, in the procedure of retrial by the Decision [Cn. no. 119/2015] of 24 February 2017, partially approved the Applicant’s proposal for compensation of the expropriated immovable property and consequently determined the amount of the compensation for the Applicant. This last Decision of the Basic Court was upheld by the Decision [Ac. no. 4784/17] of 24 May 2021 of the Court of Appeals. Against these two last Decisions, namely of the Basic Court and the Court of Appeals, the Municipality of Gjilan, in the capacity of the counter-proposer, submitted a revision to the Supreme Court, in which case the latter: (i) approved the revision of the Municipality of Gjilan, (ii) modified the Decision of the Basic Court and the Decision of the Court of Appeals; and (iii) rejected the Applicant’s proposal for compensation of the expropriated immovable property, on the grounds that, based on the provisions of the applicable Law on Obligations, the Applicant’s request was time-barred.

The Applicant claimed before the Court that his fundamental rights and freedoms guaranteed 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 46 [Protection of Property] of the Constitution have been violated, since: (i) based on Article 2b of the Law on Expropriation, applicable in the circumstances of his case, the revision against the decisions of the Basic Court and the Court of Appeals is not allowed; and that (ii) the procedure for determining the compensation for expropriation of the immovable property was not carried out with the urgency established by law. From the aforementioned Applicant’s allegations, in terms of his right to fair and impartial trial, it follows that the issues raised in his referral are related to the lack of jurisdiction of the Supreme Court to decide on revision, which claims allegations in essence and based on the case law of the European Court of Human Rights, are related to the criterion of the right to a “court established by law”, guaranteed by paragraph 2 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of the European Convention on Human Rights. On the other hand, his allegation related to the urgent nature of the procedure for determining the amount of compensation because of the expropriation of the property based on the provisions of the applicable laws, is related to the guarantees established in paragraph 3 of Article 46 of the Constitution in conjunction with Article 1 of Protocol no. 1 of the European Convention on Human Rights.

In assessing the Applicant’s allegations, the Court first elaborated and then applied in the present case (i) the general principles of its case law and of the European Court for Human Rights regarding the principle of the “court established by law”; and (ii) in terms of the right to property, also applied the guarantees defined in the constitutional and legal provisions that relate to the right to compensation in case of expropriation of property, as well as the principles established in the relevant case law of the European Court to Human Rights and the Court itself.

First, in the application of the principles related to the right to a “court established by law”, including the Court’s own case law in similar cases, among others, it was clarified that based on Article 2b of the Law on Expropriation (Official Gazette of SAPK 46/86), against the final decisions on the determination of compensation, revision is not allowed and consequently, the Supreme Court had no jurisdiction to decide on the revision of the responding party. In this regard, the Court recalls that by the Decision [Ac. no. 4784/17] of the Court of Appeals of 24 May 2021, the Decision [Cn. no. 119/2015] of the Basic Court of 24 February 2017, rendered in the retrial procedure was upheld, by which the amount of compensation for the contested immovable property was determined. Therefore, in the absence of jurisdiction to decide on this matter by revision, the latter cannot be considered as a “court established by law” within the meaning of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights.

Secondly, in applying the principles related to the Applicant’s right to compensation as a result of the expropriation of his immovable property and the urgent nature of such a procedure, the Court assessed that, as a result of the lapse of a considerable period the proceedings were conducted in the non-contentious procedure, the compensation procedure for the expropriation of immovable property was not held with the urgency required in accordance with paragraph 3 of Article 46 of the Constitution and Article 2b of the Law on Supplementing and Amending the Law on Expropriation. More specifically, the Court considered that because of the delay in providing immediate and adequate compensation for the expropriation of his immovable property, the fair balance between the protection of property and the requirements of the general interest had been broken, and therefore, the Applicant’s right to property guaranteed by paragraph 3 of Article 46 of the Constitution in conjunction with Article 1 of Protocol no. 1 of the European Convention on Human Rights has been violated.

Finally, based on the clarifications given in the published Judgment, the Court found that the Judgment [Rev. no. 382/2021] of the Supreme Court of 22 September 2021 is not in compliance (i) with paragraph 2 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 and (ii) with paragraph 3 of Article 46 [Protection of Property] of the Constitution in conjunction with  Article 1 (Protection of property) of Protocol no. 1 of the European Convention on Human Rights. As a result of this finding, the Court declared invalid the Decision [Rev. no. 382/2021] of the Supreme Court of 22 September 2021 and found that the Decision [Ac. no. 4784/17] of the Court of Appeals of 24 May 2021, is final and binding.