Constitutional Court

KI20/21 Applicant: Violeta Todorović, Constitutional review of Decision No. AC-I-16-0122 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on the Privatization Agency of Kosovo Related Matters of 1 October 2020

KI20/21 – Judgment of 13 April 2021, published on 30 April 2021

Keywords: Individual referral, admissible referral, right to appeal, access to justice

The Applicant had been employed in the SOE “Yumco” since 1990. As the latter was privatized, the PAK published in the media the final list of employees with legitimate rights in SOE “Yumco” in which list, the Applicant was not included. Therefore, the Applicant filed a complaint with the Special Chamber of the Supreme Court of Kosovo on the Privatization Agency of Kosovo Related Matters (SCSC) regarding the final list of employees of SOE “Yumco” requesting that her name be included in the list of employees entitled to payment of 20% of revenues. On 24 May 2016, the Specialized Panel of the SCSC by Judgment [C-II-13-0444] rejected the Applicant’s appeal as ungrounded, On 15 June 2016, against the above-mentioned Judgment of the Specialized Panel, the Applicant filed an appeal with the Appellate Panel, alleging that she was part of the S.O.E. “Yumco” even after 1997. On 4 October 2019, the Appellate Panel, by Judgment [Ac-I-16-0122], dismissed the Applicant’s appeal as out of time, stating that the Judgment [C-II-13-0444] of 24 May 2016, of the Specialized Panel was served on the Applicant on 3 March 2016 and according to the legal remedy of the same Decision, it is provided that an appeal can be filed within 21 days. However, the complaint was filed on 15 June 2016, indicating that it was filed out of the legal deadline established by law.

On 21 October 2019, the Applicant filed a request with the Appellate Panel to rectify the clear technical error of Judgment [Ac-I-16-0122] of the Appellate Panel of 4 October 2019, alleging that Judgment [C -II-13-0444] of the Specialized Panel, of 24 May 2016 was served on her on 3 June 2016, while the appeal against this Judgment was filed with the Appellate Panel on 15 June 2016, within a period of 21 days. On 1 October 2020, the Appellate Panel by Decision [Ac-I-16-0122], dismissed the Applicant’s request as inadmissible, adding that the Judgment [AC-I-16- 0122] of the Appellate Panel of 4 October 2019, is final, although it concluded that the Applicant’s statements that the Judgment of the Specialized Panel was served on the Applicant on 3 March 2016, were correct.

The Applicant alleged that the challenged decision violated her fundamental rights and freedoms guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution and Articles 6 (Right to a fair trial) and 13 (Right to an effective remedy) of the ECHR.

The Court initially examined the Applicant’s allegations concerning the right of “access to court”, as one of the principles of a fair trial in accordance with Article 31 of the Constitution and Article 6 of the ECHR.

After having addressed the Applicant’s allegations, the Court found that in Decision [No. AC-I-16-0122] of 1 October 2020, the Appellate Panel despite the fact that it found that the Applicant’s allegations were correct, and consequently that her complaint was filed according to the deadlines set out in Article 10, paragraph 6 of the Law No. 04/L-033, the latter rejected the Applicant’s request for correction of the error of the Appellate Panel by the Judgment of 4 October 2019, considering her request as a request for reconsideration of the court decision.

Therefore, the decisions of the Appellate Panel resulted in the impossibility that the Applicant’s appeal against the Judgment of the Specialized Panel be considered on merits. In this way, the Appellate Panel limited to the Applicant the access to the court, as one of main principles of a fair trial. Therefore, the Court finds that there has been a violation of Article 31.1 of the Constitution, in conjunction with Article 6.1 of the ECHR.