- The Constitutional Court
KI100/21, Applicant: Moni Commerce L.L.C., constitutional review of the Decision ARJ-UZVP-no. 72/2020, of the Supreme Court of Kosovo, 28 October 2020
KI100/21, Judgment of 24 September 2021, published on 12 October 2021
Keywords: legal entity, customs and excise code, violation of the right to fair and impartial trial, unreasoned decision
The Applicant is a company, which imports goods from “Company L”, originating from China. It is noted from the case file that the value of these goods declared for customs clearance by the Applicant was re-assessed by the Customs. The decision of Kosovo Customs for re-assessment was challenged by the Applicant in the second instance of Kosovo Customs, which decided that in this case, it was acted correctly because based on, among others, the information received from the regular clearances and prices received from the stock exchange at the time of purchase of the goods, the value of the goods declared for customs clearance did not turn out to be the real value paid for the goods for the purpose of import. Consequently, the Applicant had initiated proceedings in the regular courts, challenging the legality of the decisions of the two instances of Kosovo Customs. Following the proceedings in the regular courts, the Basic Court, the Court of Appeals and the Supreme Court, respectively, found that the Kosovo Customs has acted correctly in the case of assessment of goods according to the relevant method of the Customs and Excise Code. Furthermore, they also referred to the fact that the Applicant could not harmonize the declared value of the goods in question with the value paid with two bank transfers, stating specifically that the Applicant did not certify the compliance of the value of bank transactions in the amount of 7,600.00 USD and 5,400.00 USD, with the value of the accompanying invoice of the goods, having the total value of 22,000.00 USD.
The Applicant, as the main allegation before the Constitutional Court has raised the issue of unreasoned judicial decision, alleging that the Supreme Court has not addressed, respectively has not reasoned, his essential and determining allegation that all lower instance courts have erroneously read the reflected facts in the bank transactions regarding the real amount paid, respectively the amount of 15,400.00 USD in court decisions was written as 5,400.00 USD, resulting in erroneous findings regarding the discrepancy between the amount paid and declared.
In assessing the allegations of the Applicant for violation of his rights to fair and impartial trial as a result of the lack of a reasoned court decision, the Court first elaborated and then applied in the circumstances of the present case, the principles of its case law and of the European Court of Human Rights, recalling that on the basis of the same, and as far as it is relevant to the circumstances of the present case, the extent to which the obligation to give reasons applies, may vary depending on the nature of the decision and should be determined in the light of the circumstances of the present case, however it is the obligation of all courts to address and justify the substantive and defining allegations of a party. In the circumstances of the present case, the Court found that the Court of Appeals and the Supreme Court, respectively, had not responded to the Applicant regarding his main allegation in relation to the issue of the amount reflected in the bank transactions. The Court considered that this allegation of the Applicant is substantial and, in addition, may be decisive regarding the merits of the Applicant’s lawsuit.
Consequently and based on the justification given in the published Judgment, the Court found that the challenged Decision of the Supreme Court was issued contrary to the procedural guarantees set out in Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, remanding the same to the Supreme Court, for reconsideration.
Moni Commerce L.L.C.
KI – Individual Referral
Violation of constitutional rights
Article 31 - Right to Fair and Impartial Trial