Constitutional Court

KI175/20, Applicant: Privatization Agency of Kosovo, constitutional review of Decision AC-II-15-0042 of the Appellate Panel of the Special Chamber of the Supreme Court on Privatization Agency of Kosovo Related Matters, of 21 July 2020

KI175/20, resolution on inadmissibility, of 25 March 2021, published on 27 April 2021

Keywords: individual referral, equality before the law, right to a fair trial, protection of property, judicial protection of rights, manifestly ill-founded claim, inadmissible referral

The Applicant challenged before the Constitutional Court the Decision AC-II-15-0042of the Appellate Panel of the Special Chamber of the Supreme Court, of 21 July 2020 on Privatization Agency of Kosovo Related Matters, by alleging violations of the rights  guaranteed by Articles 3 [Equality before the Law], 31 [Right to Fair and Impartial Trial], 46 [Protection of Property], 53 [Interpretation of Human Rights Provisions], 54 [Judicial Protection of Rights], 102 [General Principles of the Judicial System], 103 [Organization and Jurisdiction of Courts], 121 [Property] and 159 [Socially Owned Enterprises and Property] of the Constitution of the Republic of Kosovo in conjunction with Article 6 [Right to a fair trial] of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In this case, the Court noted that the essence of the Applicant’s allegations relates mainly to the right to a fair trial which is protected by Article 31 of the Constitution and Article 6 of the ECHR, namely to the erroneous application of the provisions of the Law on the SCSC, and ii. inconsistency in decision-making, and denial of the right to participate and effective protection before the regular courts. With regard to the Applicant’s allegation that the Appellate Panel of the SCSC violated its rights guaranteed by the above articles of the Constitution because it failed to implement the relevant provisions of the Law on the SCSC, the Court considered that such an allegation raises issues of legality and not constitutionality. The Court has repeatedly stated that as a general rule, allegations for erroneous interpretation and application of the provisions of the law allegedly committed by the regular courts relate to the scope of legality and as such, do not fall within the jurisdiction of the Constitutional Court, and therefore, in principle, they cannot be examined by the Court.

As regards the allegation for inconsistency in decision-making, the Applicant alleged that the case law of the SCSC was inconsistent on the grounds that in identical situations it has decided differently from its case law. The Court recalls that the case-law of the ECtHR has resulted in four fundamental principles that characterize the analysis regarding the consistency of the case-law, as follows: (i) legal certainty; (ii) there isn’t an acquired right to consistency of case law; (iii) divergence is not necessarily in contradiction with the ECHR; and (iv) the exclusion of apparent arbitrariness. The Court, having assessed this specific allegation, considered that the Applicant has failed to argue that the factual circumstances of the present case were completely identical with the cases which it has referred to. In this context, the Court remanded the Applicant that no allegation for inconsistency in decision-making can be built, solely on the basis of how the relevant provisions of the Laws on the SCSC and the Law on Contested Procedure have been interpreted and applied. Furthermore, the Court found that the legal framework of the SCSC over the years has undergone changes which have resulted in the evolution and dynamics of improvement of the administration of justice, decision-making and compliance with the requirements of the ECHR and the Constitution. The court found that in no way can it be said that in this case we are dealing with a violation of the right to a fair trial due to inconsistency in decision making and this for the reasons stated above. Therefore, in regard to this allegation the Court considers that the Applicant’s Referral must be declared manifestly ill-founded and inadmissible, in accordance with Rule 39 (2) of the Rules of Procedure, because the Applicant has failed to prove in a convincing manner the allegation for a violation of Article 31 of the Constitution and Article 6 of the ECHR.

The Applicant also complained about the violation of Articles 3, 46, 54, 102, 103, 121 and 156 of the Constitution, allegations for which the Court concluded to be manifestly ill-founded, since these allegations qualify as claims pertaining to the category (iii) “unsubstantiated or unsupported” claims because the Applicant has merely cited one or more provisions of the Convention or the Constitution, without explaining how they were violated. Consequently, they are manifestly ill founded on constitutional basis, as provided for by paragraph (2) of Rule 39 of the Rules of Procedure.

In sum, the Court, based on the standards established in its case law and the case law of the ECtHR, finds that the Applicant has not in any way sufficiently proved and substantiated its allegations for a violation of the rights guaranteed by the Constitution and the ECHR. Therefore, the Court concludes that the Referral must be declared inadmissible as manifestly ill-founded in its entirety, because the allegations of the Applicant qualify as claims falling into the category of (i) “fourth instance” claims and category (iii) “unsubstantiated or unsupported” claims. Consequently, the Court found that they were manifestly ill-founded, on constitutional basis, and therefore according to  paragraph (2) of Rule 39 of the Rules of Procedure the Referral was declared inadmissible.