USTAVNI SUD

The Applicant, the Kosovo Privatization Agency (PAK), filed a Referral pursuant to Article 113.7 of the Constitution, asserting that its rights under Articles 3.2, 31.1, 31.2, 54, 102.2, 102.3. 102.4, 112.2, 116.3, 143, and 145.2 of the Constitution, as well as Article 13 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), were infringed by a ruling made by an Appellate Panel of the Special Chamber of the Supreme Court (“Special Chamber”) because it relied upon a legal opinion from UNMIK when giving the Kosovo Trust Agency (KTA), an agency created by UNMIK, priority over PAK, which the Assembly designated as KTA’s successor, effectively countermanding the legislation, The Applicant also challenged the composition of the Special Chamber panel because none of its members was a Kosovo judge. The Applicant argued that it was therefore deprived of a fair and impartial public hearing by an independent and impartial tribunal, The Court held that the Referral was admissible, finding that the Applicant was an authorized party pursuant to Article 113.7 since the Law on PAK granted it a “full juridical personality,” the Referral complied with the 4-month deadline set by Article 49 of the Law on the Constitutional Court (“Law”), that it met the remedies exhaustion prerequisite of Article 47.2 of the Law, and it accurately specified the violated rights and freedoms, along with the related actions by public authorities, pursuant to Article 48 of the Law, On the Referral’s merits, the Court found that the Special Chamber had failed to give the Applicant an opportunity to respond to UNMIK’s submission and that it had incorporated UNMIK’s language into its decision. The Court held that the Special Chamber had not acted impartially, which violated the Applicant’s right to a fair and impartial trial under Article 31 of the Constitution and Article 6 of the ECHR. It also held that the Special Chamber violated the Applicant’s right to a fair trial under Article 31 and ECHR Article 6, as well as Article 16.3 of the Constitution, when rejecting the Applicant’s assertion of legal entity status because Kosovo was a sovereign state, citing Advisory Opinion of the International Court of Justice (22 July 2010). The Court also held that the Special Chamber, was part of Kosovo’s judiciary and had a constitutional obligation to apply laws adopted by the Kosovo Assembly, citing Article 102.3 and Article 1.1 of the Comprehensive Proposal for the Kosovo Status Settlement. Citing Article 145 of the Constitution, the Court noted that laws existing on the date of the Constitution’s implementation continued in force until repealed, superseded or amended in accordance with the Constitution, which included UNMIK Regulations and Administrative Decisions issued by the Special Representative of the Secretary General (SRSG). The Court therefore held that the Law on PAK had repealed the UNMIK Regulation that created KTA, and replaced it with PAK, which received full legal standing, citing Article 31 of the Law on PAK. The Court emphasized that EULEX judges are bound to follow Kosovo law, citing the Law on the Jurisdiction, Case Selection and Case Allocation of EULEX Judges and Prosecutors in Kosovo. In its final analysis, the Court held that the Special Chamber violated Article 102 of the Constitution when failing to acknowledge PAK’s replacement of KTA, as well as PAK’s status as a legal entity, pursuant to the Law on PAK, Finding no violation of Articles 31.2 and 54 of the Constitution, the Court overruled the Applicant’s objection to the Panel’s composition and Court that the participation of Kosovar judges in Appellate Panel decision is not mandatory. Rather, Section 14 of Administrative Direction No. 2008/6 merely specifies that a quorum of three judges is a prerequisite to disposition of a case, and is silent regarding the nationality of the judges, For the reasons stated, the Court issued a judgment reversing the decision of the Special Chamber pursuant to Articles 31 and 32 of the Constitution, and Article 6.1 of the ECHR, remanding the case to the Special Chamber for reconsideration in conformity with the judgment pursuant to Rule 74.1 of the Rules of Procedure, and requiring the Special Chamber to submit information to the Court describing the measures taken to enforce its judgment