Notification on the published Judgment KI121/22

The Constitutional Court of the Republic of Kosovo has published the Judgment in case KI121/22, submitted by Mexhid Asllani, Ekrem Asllani and Nuredin Xhaferi, whereby was requested the constitutional review of Decision [Rev. no. 434/2021] of 24 May 2022 for supplementation of Judgment [Rev. no. 426/2021] of 29 June 2021 of the Supreme Court and Judgment [Ac. no. 1148/2018] of the Court of Appeals of 4 March 2020. The Court, with five (5) votes for and four (4) against, found that (i) the referral is admissible; and (ii) that there has been a violation of paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights. This Judgment has been supplemented also with dissenting opinions.

The circumstances of the present case are related to a civil dispute between the applicants and Sigal Uniqua Group Austria insurance company, regarding a traffic accident that occurred on the Ferizaj – Kaçanik highway, in which the applicants suffered bodily injuries. As a result, the applicants, on 15 July 2015, filed a lawsuit for compensation of material and non-material damage with the Basic Court in Ferizaj. The latter had partially approved their lawsuit, awarding each of the applicants a certain monetary amount. Dissatisfied with the amount of the compensation, the applicants and Sigal Uniqua Group Austria filed appeals against the aforementioned Judgment of the Basic Court with the Court of Appeals. The Court of Appeals, on 4 March 2020, decided only in relation to the appeal of the respondent Sigal Uniqua Group Austria, but not on the appeal of the applicants. As a result, upon being served with the judgment of the Court of Appeals, the applicants, as well as the respondent Sigal Uniqua Group Austria, submitted a request for revision to the Supreme Court. The latter, on 29 June 2021, rendered Judgment [Rev. no. 426/2021], by which it rejected the revision of the respondent Sigal Uniqua Group Austria in entirety, but did not decide on the request for revision of the applicants. The latter, had repeatedly addressed the Supreme Court and as a result, the Supreme Court rendered a supplementary Decision [Rev. no. 434/2022], on 24 May 2022, by which it rejected as impermissible the revision of the applicants, due to the value of the dispute under the amount of three thousand (3,000) euro for each applicant.

The applicants before the Constitutional Court challenged the aforementioned decisions, claiming violation of their rights guaranteed by Article 31 [Right to Fair and Impartial Trial], in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights. In essence, the applicants claimed the violation of their right to “access to justice” by (i) the Court of Appeals, on the grounds of non-consideration of their appeal; and (ii) the Supreme Court, due to the non-consideration of the essential allegation of denial of justice and legal remedy by the Court of Appeals.

In assessing the applicants’ allegations, the Court first (i) elaborated on the general principles of its case law and that of the European Court of Human Rights, regarding the principle of access to justice; and (ii) then applied the latter to the circumstances of the present case, recalling that, in principle, the right to fair and impartial trial, namely access to justice, does not reflect only the right to initiate proceedings, but also the right to receive a resolution of the relevant dispute from an independent court established by law. In this regard, the Court first examined the claims of the applicants regarding the violation of the right to access to justice by the Court of Appeals, concluding that the latter, by not handling the appeal of 31 August 2017, nor by Judgment [Ac. no. 1148/2018] of 4 March 2020, nor by any special decision, made it impossible for the applicants to examine the essence of the claims raised in the appeal, against the relevant Judgment of the Basic Court. On the other hand, in relation to the violations alleged by the Supreme Court, the Court assessed that this court should focus on the essence of the violation claimed by the applicants, which was the right to a legal remedy before the Court of Appeals, and not accept as correct Judgment [Ac. no. 1148/2018] of 4 March 2020 of the Court of Appeals, which did not decide on the civil rights and obligations of the applicants, but on those of the respondent, namely, Sigal Uniqua Group Austria.

Consequently, and as explained in detail in the published Judgment, the Court concluded that the Decision [Rev. no. 434/2022] of 24 May 2022 to supplement Judgment [Rev. no 426/2021] of 29 June 2021 of the Supreme Court of Kosovo, and Judgment [Ac. no. 1148/2018] of 4 March 2020 of the Court of Appeals were issued in violation of the constitutional rights of the Applicants, guaranteed by paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with paragraph 1 of Article 6 [Right to a fair trial] of the European Convention on Human Rights.

Along with the Judgment, the dissenting opinion has also been published.

This translation is unofficial and serves for informational purposes only.

Note: 

This press release was prepared by the Secretariat of the Court for informational purposes only. The full text of the decision has been served to the parties involved in the case, is published on the Court’s website and will be published on the Official Gazette within set deadlines. To receive notifications on the decisions from the Constitutional Court please register at the Court’s website: https://gjk-ks.org/en/