Perspectives | Justice

Years go by, justice falls behind

By - 30.05.2017

The Constitutional Court misses golden opportunity.

The right to have a fair legal process within a reasonable time is guaranteed by Article 6.1 of the European Convention of Human Rights and Article 31.2 of the Constitution of Kosovo. From a statistical point of view, this right is the most frequently violated right by the courts of the region and those of the member states of the Council of Europe. A review of the judgements of the constitutional courts in the region, even a superficial one, not to mention the large number of applications to the Strasbourg Court on this ground, both highlight the frequency of this right’s violation.

The problem of excessive length of legal proceedings also exists in Kosovo. However, unlike its sister courts in the region and Europe, the Constitutional Court of Kosovo has not found any violation of the right to a legal process within a reasonable time to date. Curiously, since the court started working in 2009 all the way up until 2016, no applicant appears to ever have complained with regard to the length of legal proceedings.

Although the reasons why there were no such judgments and complaints to the Constitutional Court are extremely interesting (lack of trust, fatigue from proceedings before the regular courts, lack of financial compensation in case of success, etc.), these are not the subject of this analysis. What is worthy of attention here is the way in which the Constitutional Court has neglected its first and only opportunity to date to identify and address the problem of the excessive length of legal proceedings.

Pursuant to the procedural rules, the KTA initially drafted the temporary list of employees, which any unsatisfied worker could have challenged through a complaint to the KTA.

On 12 May 2017, the Constitutional Court published the decision in the case of Qazim Bytyqi and others. In complaining about the length of the legal proceedings, the complainants obliged the Court to face for the first time one of the most chronic problems of the Kosovo judiciary: the unreasonable length of legal proceedings.

Having enquired with the applicants about whether they had filed any “urgency briefs,” having considered the date of commencement and termination of the procedure, the complexity of the case and the considerable number of complainants, 98 in total, the Court concluded that the duration of “six years and nine months cannot be considered unreasonable.”

Both the reasoning and conclusion of the Court leave room for abundant criticisms.

The dispute

The complainants in the case had a dispute with administrative body, the Kosovo Trust Agency (KTA), regarding the existence of their right to be part of the list of workers benefiting from the so-called 20 percent fund of the socially owned enterprise “Mustafe Goga.” As a rule, an employee of the enterprise has the right to benefit from the fund in question if he was both registered as an employee of the enterprise at the time of privatization or liquidation (whichever came first) and was on the payroll of the enterprise for at least three years. However, an employee who does not meet these criteria may benefit from the fund if his disqualification was discriminatory. Therefore, the essence of the dispute was whether or not the above three criteria were met by the complainants.

Pursuant to the procedural rules, the KTA initially drafted the temporary list of employees which any unsatisfied worker could have challenged through a complaint to the KTA. After review, the KTA published the final list which could be challenged by unsatisfied workers in front of the Special Chamber. It is worth pointing out that the Special Chamber is a court specialized in similar cases and composed of two instances that may be compared to form a general idea with the Court of Appeal and the Supreme Court.

Therefore, to resolve this dispute the applicants did not have the right to go directly to the courts but were obliged to lodge a complaint with the administrative body (the KTA). This complaint to the administrative body which marked the commencement of the procedure was lodged in June 2007, pursuant to the deadline to challenge the temporary list of employees published by the KTA.

If you lodged a claim with the competent court in the course of the next month, June 2017, the final answer to your concern may come six years and nine months later: in March 2024.

Since the administrative complaint was rejected, the applicants obtained the right to lodge a ‘judicial’ appeal for the reinstatement of their rights, a complaint that they lodged in July 2009 pursuant to the relevant deadline set in the final list published by KTA.

This appeal proved to be successful in the first instance (judgment of 2013) and the second instance (judgment of 16 March 2016) of the Special Chamber.

Through a press release, the Privatization Agency of Kosovo (PAK — a successor of the KTA) informed the public on August 2, 2016 that the judgment was executed.

Tempus fugit

As noted above, the Constitutional Court determined the date of initiation and completion of the procedure, and after considering the complexity of the case and the large number of complainants, it concluded that six years and nine months is a reasonable length of time.

Even if we admitted that the real length of the proceedings was six years and nine months, such length may not be regarded as reasonable. To understand better what this means, imagine for a moment a dispute you may have today with an employer, university, neighbor, bank, business partner or spouse, with the tax office or with any other administrative authority. If you lodged a claim with the competent court in the course of the next month, June 2017, the final answer to your concern (according to the standard set by the Constitutional Court) may come six years and nine months later: in March 2024. Despite justifications regarding the number of parties, judges, the complexity of matter etc., there is nothing reasonable about such a timeframe.

As if this was not enough, the length of six years and nine months of the procedure of the complainants against the KTA was calculated incorrectly by the Constitutional Court. Its real length is about nine years.

Starting date

In paragraph 55 of its decision, the Constitutional Court found that the date of the initiation of the procedure of the complainants against the KTA was July 2009 when the complainants filed their complaint with the Special Chamber.

This determination is erroneous since the complaint made in July 2009 is not the first procedural action the complainants had undertaken in this case. The first procedural action of the applicants was the complaint they had submitted to the administrative body (the KTA) in June 2007. This administrative complaint is not mentioned in the Constitutional Court’s decision, however, since the exercise of this administrative complaint is a legal prerequisite for the admissibility of the subsequent claim with the Special Chamber, we can safely assume that the complainants have lodged said administrative complaint.

A sound reasoning should have driven the Constitutional Court to consider the entire time that the complainants lost in awaiting a response to their claims, including the time spent in front of the administrative body (the KTA).

By holding that the procedure under consideration started in July 2009, the Constitutional Court disregarded the 25-month period that passed from June 2007 (submission of an administrative complaint against the temporary list to the administrative body) to July 2009 (filing the complaint to the Special Chamber).

A short parenthesis is essential at this point. For the purposes of study, organization or simply to overcome monotony, lawyers have given colorful legal adjectives to different procedures. For example, there is the administrative procedure (judicial and nonjudicial), civil and criminal procedure, execution procedures, etc. However, these imaginative categorizations have a secondary importance when it comes to calculating the reasonable length of proceedings pursuant to the ECHR or the Constitution.

In other words, when calculating the length of proceedings for the purposes of the ECHR and the Constitution, what is relevant is the entire time that passed from the complainant’s first procedural action until the day when his claims were fully executed (in case of a successful lawsuit) or have been rejected through a final judgment. Neither the name of the body (court, agency, bailiff) or of the procedure matters in these cases. Thus, the assessment of the length is not limited to the strictly judicial proceedings in front of courts but involves any other related procedure. End of parenthesis.

A sound reasoning should have driven the Constitutional Court to consider the entire time that the complainants lost in awaiting a response to their claims, including the time spent in front of the administrative body (the KTA). Apart from the sound reasoning, this conclusion is also dictated by the case law of the Strasbourg Court, which has repeatedly emphasized that although as a general rule for calculating the length of time, a court proceeding begins at the moment of filing the first procedural act before the competent court, the length of administrative procedure is included in the calculation when the exercise of its administrative complaint is a prerequisite for initiating court proceedings (as it is the case here). This stance has been held by the Strasbourg Court in the cases of KONIG v. Germany (paragraph 98), X vs. France (paragraph 31) and Kress vs. France, (paragraph 90).

Date of completion

In paragraph 56 of its decision, the Constitutional Court found that the date of completion of the procedure in question was 16 March 2016, when the Appellate Panel of the Special Chamber admitted as grounded in law and evidence the allegations of the complainants and thereby rendered the final judgment on the issue.

To those who understood the above parenthesis it should be clear why this conclusion of the Constitutional Court is also incorrect.

The ultimate purpose of the complainants in question was not to merely obtain a judgment by the Appellate Panel of the Special Chamber (however interesting this document is from different points of view). Obtaining such a judgment is merely an intermediate objective to achieve the ultimate goal of obtaining the sums money from the 20 percent fund. Thus, the procedure did not end for the complainants on 16 March 2016. The case was resolved for the complainants only on the date when their bank accounts were credited with the corresponding amounts from the 20 percent fund.

This conclusion is also based on the case law of the ECtHR, which in Jarreau v. France (paragraph 27) determined that “the conclusion of a procedure the length of which is being assessed under Article 6.1 is the time when the requested right is effectively enforced.”

The excessive length of judicial proceedings is not a problem unique to the Kosovo legal system.

For this reason, the Constitutional Court should have requested further information from the competent authorities and complainants regarding the execution of the judgment and should have included in the calculation of the length of the proceedings the time passed until the complete execution of the final judgment. By determining the date of issuing the judgment as the last day of the legal procedure, the Constitutional Court has left out of its calculation a period of time (though brief) that should have been included in the calculation in order to establish a coherent case-law in accordance with the standards of the ECtHR.

Due to this shortcoming the exact date of execution of the final judgment in this case does not appear in the ruling of the Constitutional Court. What is clear is that the judgment was executed somewhere between 16 March 2016 (release date) and 2 August 2016 (date of PAK’s press release). If we consider roughly that the execution occurred in June 2016, the total length of the proceedings that started in June 2007 is about nine years.

Imagine once again your lawsuit from June 2017 — its resolution was just postponed to the distant future, June 2026.

Continuation and conclusion

The above are just two of the numerous weaknesses of the decisions of the Constitutional Court. Other weaknesses are of a technical and procedural nature and as such inappropriate to be discussed in detail here. However, very briefly it can be said that the complexity of the case does not seem as high as the Constitutional Court suggests and that the fact that the complainants were numerous was intended as a way to make the procedure more rapid, not to justify its delays.

Additionally, the first applicant, and the second and so on, may not be penalized with an excessive length of procedure on the grounds that dozens of other people have also decided to complain to the authorities.

Furthermore, the weight that the Constitutional Court seems to grant to “urgency briefs” is worrying given that such “urgency briefs” are not a genuine procedural tool but an invention that tries to persuade the courts that one case should have priority over matters of other parties, regardless of which claim was lodged with the court first!

In conclusion, this analysis would be incomplete and unfair if it failed to mention several additional key facts related to the context of the topic.

Firstly, the excessive length of judicial proceedings is not a problem unique to the Kosovo legal system; it is an extremely widespread problem in the region and in all Council of Europe states, including the Strasbourg Court itself, which ineffectively and with some hypocrisy regularly fails to observe the time standards it imposes on the courts of the member states of the Council of Europe.

Secondly, this analysis does not intended to distribute guilt to the administrative bodies or courts involved in the concrete case. The solution to the problem of excessive length of proceedings is still far away and no one intends or seriously expects to resolve it in one day.

However, what can be done and needs to be done is the identification of the problem, instead of closing one’s eyes and qualifying as clean or timely a legal procedure over which lays the polluting dust of the last nine years. The Constitutional Court could and should have made this finding by sending the regular courts the message that the problem exists and should be addressed. In this regard, the Constitutional Court missed a golden opportunity to diagnose this disease which extends the life of the procedure, but shortens the one of its initiator.

Feature image: Majlinda Hoxha / K2.0.

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