Constitutional Court

KI168/22, Applicants: Nusret Kabashi, Bajram Kabashi and Driton Kabashi,  Constitutional review of Decision  [AC-I-22-0418-A0001] of the Appellate Panel of the Special Chamber of the Supreme Court f Kosovo of 22 September 2022

Keywords: individual referral, right to fair and impartial trial, security measure, violation of the  right to fair and impartial trial

The Constitutional Court of the Republic of Kosovo has decided regarding the case KI168/22, with Applicants Nusret Kabashi, Bajram Kabashi and Driton Kabashi, for the constitutional review of the Decision [AC-I.-22-0418-A0001], of 22 September 2022, of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, submitted to the Court based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo.

The Court, with seven (7) votes in favor and one (1) against, decided that (i) the referral is admissible; (ii) there has been a violation of paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution and paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights; (iii) declare invalid the Decision [AC-I.-22-0418-A0001] of 22 September 2022, of the Appellate Panel of the Special Chamber of the Supreme Court; and (iv) to remand the case for retrial to the Appellate Panel of the Special Chamber of the Supreme Court.

The circumstances of the present case are related to the procedure for the purchase by A.K., on behalf of the company “Petrol Kabashi” l.l.c., of some properties of the former Social Enterprise AC “Bujqësia”, through the procedure of direct negotiation with the Privatization Agency of Kosovo. As a result, the Privatization Agency of Kosovo and “Petrol Kabashi” l.l.c. signed the Contract for the sale and transfer of the disputed properties. The Applicants filed a lawsuit with the Specialized Panel of the Special Chamber of the Supreme Court against the Privatization Agency of Kosovo and “Petrol Kabashi” l.l.c, requesting (i) the imposition of a security measure on the disputed properties; and (ii) cancellation of the above-mentioned contract, with the claim that the latter is contrary to Law no. 04/L-034 on the Privatization Agency of Kosovo. The Specialized Panel of the Special Chamber of the Supreme Court approved the request for a security measure until the final resolution of the case. However, after the appeal of the respondents filed with the Appellate Panel of the Special Chamber of the Supreme Court, the latter approved the appeals and modified the decision of the first instance regarding the security measure. The Appellate Panel of the Special Chamber of the Supreme Court, when modifying the decision regarding the security measure, emphasized that as a criterion for granting the security measure, among other things, is the damage that may be caused to the party if the security measure is not approved. Regarding the criterion in question, it considered that in the present case the claimed damage has already occurred and cannot be avoided, but it can be repaired in monetary terms if the claimants  manage to succeed in their lawsuit in the merits of this contested case, thus assessing that the requirements for the imposition of an interim measure regarding the contested properties have not been met.

The Applicants before the Court alleged that by the relevant Decision of the Appellate Panel of the Special Chamber of the Supreme Court, their rights guaranteed by Article 31 [Right to Fair and Impartial Trial] and Article 46 [Protection of Property] of the Constitution in conjunction with Article 6 (Right to a fair trial) and Article 1 (Protection of property) of Protocol No. 1 of the European Convention for the Protection of Human Rights have been violated, among others, because the contested decision does not address their essential allegations regarding the legality of the aforementioned decision, including those related to the need for the security measure.

In assessing the Applicants’ allegations, the Court (i) first elaborated on the general principles regarding the right to a reasoned court decision, as guaranteed by the aforementioned articles of the Constitution and the European Convention on Human Rights; and then (ii) applied the same to the circumstances of the present case. According to the clarifications elaborated in the published Judgment, the Court assessed that the Appellate Panel of the Special Chamber of the Supreme Court in the present case did not struck a fair balance between the litigants in this procedure, because it did not address any of the essential allegations and arguments, which in the present case include (i) the possibility that through the rejection of the request for interim measure, irreparable damage could be caused to the Applicants; as well as (ii) not giving a specific answer regarding the decisive allegation in the context of the lack of procedural legitimacy of the Privatization Agency of Kosovo. The Court reiterated that, based on the case law of the European Court of Human Rights and the Court, the regular courts have the discretion to assess the arguments of the parties to which an answer must be given, however, addressing the essential and decisive allegations of the respective parties is mandatory in the context of the right to a reasoned court decision.

In the end, the Court emphasized that its Judgment was rendered only in relation to the procedure for the suspension/postponement of the execution of the contested decisions until the regular courts decide on the merits of the lawsuit. The issue of the legality of the aforementioned decisions is under review before the regular courts and the Court’s Judgment in this case does not in way prejudice their decision-making regarding the merits of the lawsuit.