Constitutional Court

KI64/23, Applicant: Mejrem Qehaja Rexha, Constitutional review of the excessive length of the court proceedings in the Basic Court in Gjakova regarding the case [C. no. 546/18]

KI64/23, Judgment of 31 August 2023

Keywords: individual referral; confirmation of property; trial within a reasonable time; constitutional violation

The circumstances of the present case are related to a property dispute, the lawsuit related to the confirmation of ownership of which, the Applicant had initiated in 2008. The latter filed a lawsuit for confirmation of ownership with the Municipal Court in Gjakova against four (4) respondents who lived outside Kosovo. Since 2008, the Municipal Court, now the Basic Court, has not decided on the Applicant’s statement of claim. For fourteen (14) years, the aforementioned court held a total of seventeen (17) court hearings, mostly of a preparatory nature, while the court procedure has been continuously postponed, mainly as a result of the non-participation of the respondents in the relevant hearings. Although the Basic Court decided to communicate with the respondents outside Kosovo, by invitations sent through the Ministry of Justice, in most cases the respondents were absent from the hearings scheduled by the Municipal/Basic Court, not justifying their non-participation. From January 2010 to January 2016, a period of 6 (six) years, and from February 2018 to September 2020, a period of more than 2 (two) years, no court session was held. The last court session related to the Applicant’s lawsuit was held on 27 January 2022.

The Applicant before the Court challenged the excessive length of the court proceedings, with the claim that her case was not adjudicated within a reasonable time frame, since the Basic Court has not yet decided on her lawsuit filed in 2008 and as a result violated the guarantees of the right to fair and impartial trial, established in Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 (Right to a fair trial) of the European Convention on Human Rights.

In assessing the aforementioned Applicant’s allegation, the Court elaborated on the general principles regarding the excessive length of the judicial procedure, namely the conclusion of the judicial process within a reasonable time period, established in the case law of the European Court of Human Rights and the case law of the Court. The latter, among other things, clarified that the reasonableness of the length of the proceedings should be assessed in the light of the circumstances of the case, based on: (i) the complexity of the case; (ii) the conduct of the parties to the proceedings; (iii) the conduct of the competent court or other public authorities; and (iv) the importance of what is at stake for the Applicant in the relevant dispute.

In this context, the Court initially determined that the period that must be taken into account for the excessive length of the court proceedings in the circumstances of the present case, starts from 11 December 2008, when the Applicant filed the lawsuit with the Municipal Court, until 15 March 2023 when the Applicant submitted the referral to the Court, namely more than fourteen (14) years of court proceedings which had not resulted in any court decision. Further, in the application of the principles stemming from the case law of the European Court of Human Rights, the Court, among other things, emphasized that (i) despite the fact that the circumstances of the case involved a property dispute, taking into account the number of witnesses and the evidence presented, the latter does not result to be a case of high complexity; (ii) in the context of the conduct of the parties to the proceedings, the Applicant participated in almost all the court sessions and was active throughout the court proceedings, not contributing to the delay of the court proceedings; and (iii) in the context of the conduct of the public authority, the Basic Court, despite the fact that it had held seventeen (17) preparatory hearings, had not managed to decide on the merits of the Applicant’s lawsuit, while, considering that the respondents lived abroad and did not participate in the hearings, did not use the legal possibilities for the appointment of temporary representatives to enable the continuation of the procedure. Taking into account the cumulative application of the aforementioned criteria, the Court found that, under the circumstances of the relevant case, the duration of the procedure cannot be considered reasonable and that, as a result, there has been a violation of paragraph 2 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of the European Convention on Human Rights, regarding the right to a fair trial within a reasonable time.

Finally, taking into account the Court’s finding that the ‘length of the proceedings related to the Applicant’s lawsuit constitutes a violation of the right to a court decision within a reasonable time, established in Article 31 of the Constitution and Article 6 of the European Convention on Human Rights, the Court ordered the Basic Court in Gjakova to notify the Court, as soon as possible, but no later than 6 (six) months, namely until 29 February 2024, regarding the measures taken to implement the Judgment of the Court.

The Court also clarified that it does not have the competence to grant compensation, but that based on its case law, the Applicant can use the legal remedies available according to the legislation in force, for the further exercise of her rights, by including the right to seek appropriate compensation as a result of violation of the right to fair and impartial trial within a reasonable time as guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights.