Constitutional Court

KI122/21, Applicant: Lekë Bytyqi, Constitutional review of the Supreme Court Ruling [CPP. No. 1/2021], of 10 March 2021

KI122/21, Judgment of 27 July 2021, published on 5 September 2023

Key words: individual referral, principle of equality of arms, principle of adversarial proceeding

Circumstances of this case pertain to the Applicant’s allegation concerning the property right in question, a proceeding that the Applicant initiated with filing a lawsuit in order to establish his property right, along with a request for imposition of a security measure that sought to prohibit N.B., Sh.B., and A.B. from alienating or burdening the disputed object until the final resolution of the dispute. A number of proceedings have been conducted before the regular courts regarding the request for imposition of the security measure. Upon review of the case files, it can be seen that the Basic Court in Prizren, in 2015, initially (i) rejected a proposal for imposition of a temporary security measure as unfounded, and (ii) subsequently deemed the lawsuit withdrawn due to the Applicant’s lack of response to the request of the respective court for supplementation of the lawsuit. The Court of Appeals dismissed the Applicant’s appeals against the Basic Court decisions as inadmissible. That said, it results that, acting upon the Applicant’s request for revision, the Supreme Court, on 23 February 2016, remanded decision of the Court of Appeals for reconsideration with respect to the procedure that deemed the Applicant’s initial lawsuit as withdrawn by the Basic Court. While the case was pending reconsideration, in 2021, interested parties N.B., Sh.B., and A.B. submitted a proposal to the Supreme Court for the repetition of proceedings, alleging new evidence related to the Supreme Court decision of 2016 that remanded the matter of withdrawal/non-withdrawal of the lawsuit for reconsideration in the Court of Appeals. The Applicant submitted the response to the proposal for the repetition of proceedings to the Supreme Court after the expiration of the fifteen (15) day period, stipulated in paragraph 2 of Article 237 of Law no. 03/L-006 on Contested Procedure.

The Supreme Court upheld the proposal of the interested parties for the repetition of proceedings, and consequently rejected, i.e. dismissed as impermissible revision submitted by the Applicant in 2015 against decision of the Court of Appeals, for rejection of the Applicant’s appeal against decision of the Basic Court that the initial lawsuit should have been deemed withdrawn. The Supreme Court rendered the aforementioned decision regarding the proposal for the repetition of proceedings before the expiration of the fifteen (15) day period stipulated in paragraph 2 of Article 237 of Law no. 03/L-006 on Contested Procedure.

The Applicant challenges before the Court the findings of the Supreme Court, invoking a violation of the rights guaranteed by Article 31 [Right to a Fair and Impartial Trial] of the Constitution, as read with Article 6 (Right to a fair trial) of the European Convention on Human Rights, inter alia, as a result of a breach of the principles (I) res judicata, and (II) equality of arms and adversarial proceedings.

In assessing the Applicant’s allegations, the Court has (i) examined the general principles of its own case law and the case law of the European Court of Human Rights relating to the principle of equality of arms and adversarial proceedings; and subsequently (ii) applied them to the circumstances of the specific case. In this regard, the Court initially clarified that decisions of regular courts concerning the determination of whether the initial lawsuit should have been deemed withdrawn or not, could not attain the status of res judicata. That said, the Court emphasizes the fact that the Supreme Court, contrary to the constitutional guarantees for equality of arms, rendered the challenged decision in the specific circumstances of the case prior to expiration of the deadline for filing a response to the proposal for the repetition of proceedings according to the aforementioned provisions of Law on Contested Procedure, violating thereby the rights of the Applicant, guaranteed by Article 31 [Right to a Fair and Impartial Trial] of the Constitution, as read with Article 6 (Right to a fair trial) of the European Convention on Human Rights. That said, Judgment further explains that also the Applicant’s response in his appeal against proposal for the repetition of proceedings had been filed after the expiration of the period of fifteen (15) days, stipulated in the applicable law.

Therefore, despite the fact that the Supreme Court rendered the challenged decision in violation of the aforementioned provisions of the Constitution and the European Convention on Human Rights, remanding the case for reconsideration in the Supreme Court would not alter the outcome for the Applicant, given that his response to the proposal for the repetition of proceedings was belated. Consequently, the finding of the Court in this Judgment, based on the case law of the European Court of Human Rights, is declaratory in nature for the Applicant. Furthermore, the Court Judgment in this case does not in any way prejudice the Applicant’s allegations with respect to his right to inheritance and property, which may be subject of review in other ongoing judicial proceedings.

In conclusion, pursuant to the explanations given also in the published Judgment, the Court decided to declare, with seven (7) votes “in favor” and one (1) vote “against” the Referral admissible by; to hold, (ii) with seven (7) votes “in favor” and one (1) vote “against”, that Ruling [CPP No. 1/2021] of 10 March 2021 of the Supreme Court of Kosovo is not in compliance with paragraph 1 of Article 31 [Right to a Fair and Impartial Trial] of the Constitution, as read with Article 6 (Right to a Fair Trial) of the European Convention on Human Rights; and (iii) to unanimously reject the request for non-disclosure of the Applicant’s identity.