Constitutional Court

KI224/19, Applicant: Islam Krasniqi, Constitutional review of Decision AC-I-19-0114 of the Appellate Panel of the Special Chamber of the Supreme Court on the Privatization Agency of Kosovo Related Matters of 19 September 2019

KI224/18, Judgment rendered on 10 December 2020 and published on  29 December  2020

Keywords: individual referral, civil procedure, right to a fair trial, right to property, admissible referral, violation of Article 31 of the Constitution

The Applicant challenged before the Constitutional Court the constitutionality of Decision AC-I-19-0114of the Appellate Panel of the Special Chamber of the Supreme Court of 19 September 2019, alleging a violation of his rights guaranteed by Articles 24 [Equality Before Law], 31 [Right to Fair and Impartial Trial], 46 [Protection of Property] and 54 [Judicial Protection of Rights] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution). The Applicant alleged that by their decisions, the SCSC instances violated his rights guaranteed by abovementioned articles of the Constitution, because: i) the first Decision (order) of the SCSC, as he calls it, of 18 July 2017 has never reached his address, due to the irresponsibility of the Post of Kosovo; and ii) that the Appellate Panel of the SCSC did not review and administer the submissions submitted by him, which were attached to the appeal filed with this panel on 26 July 2019, such as: 1) decision of the Agency for Free Legal Aid, and 2) request for exemption from payment of court fees. As a result, he alleges that he was denied the right to a fair trial.

Referring to the present case, the Court considered that the burden of responsibility for non-administration of the Applicant’s submissions falls on the Appellate Panel of the SCSC, because the Applicant has taken every action required by the applicable legal provisions, to ensure that his appeal against the Decision [C-III-14-0151] of the Specialized Panel is duly considered. However, this did not happen, due to the irresponsibility of the Appellate Panel of the SCSC in administering the Applicant’s two submissions, which were relevant to the decision of the merits of the complaint of 26 July 2019. The Court added that only after a proper review of the Applicant’s submissions, the Court would be able to find that the Appellate Panel of the SCSC has respected his right of access to justice, which is guaranteed by Article 31 of the Constitution and Article 6.1 of the ECHR.

In conclusion, the Court found that the challenged Decision of the Appellate Panel [AC-I-19-0114], of 19 September 2019, by which the Applicant’s appeal was considered withdrawn, did not respect the Applicant’s right of access to court. Therefore, the Court found that in the present case there has been a violation of Article 31 of the Constitution [Right to Fair and Impartial Trial] and Article 6.1 [Right to a fair trial] of the ECHR.