Constitutional Court

KI108/19, Applicant: Artan Kumnova, Constitutional review of Decision AC-I-19-0016 of the Appellate  Panel of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters, of 28 February 2019

KI108/19, Resolution on Inadmissibility of 12 April 2021, published on 12 May 2021

Keywords: individual referral, manifestly ill-founded referral, inadmissible referral.

In essence, the Applicant’s main allegation is a violation of the rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR, because according to Applicant, the composition of the Appellate Panel of the SCSC was not in compliance with Article 3 [Composition, Organization and Appointment] of Law No. 04/L-033, which is then modified by Article 6 of Law No. 04/L-273 and by Article 10 of Law No. 05/L-103 on the Special Chamber of the Supreme Court of Kosovo on the Privatization Agency of Kosovo Related Matters, because the judicial panel during the review of his case was not composed by the international judges but only by the local judges.

The Court noted that the KJC in Decision [No. 197/2018] explained the functionality of the SCSC and the composition of judicial panels, taking into account the local legal acts, namely Law No. 03/L-223 on the Kosovo Judicial Council and the Regulation on the Organization and Activity of the Kosovo Judicial Council. The Court explained: (i) that the KJC based on law found solution to the legal gap created by the end of the term of the EULEX judges by establishing interim trial panels with local judges with a purpose not to delay the court proceedings; (ii) the Applicant lost the case on merits because he had not provided credible evidence for the issuance of the preliminary court order; (iii) based on the case file there is no evidence that local judges lacked both subjective and objective impartiality in general or that there has been a lack of expressed hostility to impartiality in relation with the Applicant in particular; and, that (iv) the new Law on SCSC which entered into force upon termination of the Applicant’s case – has also determined that the judicial panels should be composed of local judges (see paragraphs 22 and 23 of the Decision).

The Court stated that the role of the Constitutional Court is limited in terms of assessing the interpretation of the law, it should be certain and take action when it is substantiated that a regular court  has “applied law on manifestly erroneous manner” in a specific case and which may have resulted in “arbitrary conclusions” or “clearly unreasonable” for the Applicant (As to the basic principles regarding the interpretation and application of a clearly erroneous application of law, see, inter alia, the case of Court KI154/17 and 05/18, Applicants, Basri Deva, Aferdita Deva and the Limited Liability Company “Barbas”, Resolution on Inadmissibility of 28 August 2019, paragraphs 60 to 65 and references used therein). (See, in this context, also the case of the ECtHR, Anheuser-Busch Inc. v. Portugal, Judgment of 11 January 2007, paragraph 83; and also the cases of Court KI06/17, Applicant L.G. and five others, cited above, paragraph 40; and KI122/16, cited above, paragraph 59).

Therefore, the Court rejected the Referral as manifestly ill-founded, in accordance with paragraph 39 (2) of the Rules of Procedure.