Constitutional Court

KI91/18 – Constitutional review of Judgment ARJ. UZV. No. 1/2018 of the Supreme Court of the Republic of Kosovo of 25 January 2018

KI91/18, Applicants: Njazi Gashi, Lirije Sadikaj, Nazife Hajdini-Ahmetaj and Adriana Rexhepi

Resolution on Inadmissibility of 10 September 2019

Keywords: Individual referral, Independent Oversight Board, employment relationship, manifestly ill-founded

The Referral was submitted by four Applicants who jointly challenged the constitutionality of the aforementioned Judgment of the Supreme Court.

The Applicants applied in a job vacancy announced by the Ministry of Health for “Health Inspector”. They were selected as successful candidates by the Recruitment Commission of the Ministry of Health and consequently had signed relevant appointments and commenced their employment relationship with the Ministry of Health. The unsuccessful candidates in that vacancy initially filed a complaint with the Ministry of Health; and then with the Independent Oversight Board [“IOB”]. The latter upheld their complaints and annulled the entire job vacancy in question and the selection of the Applicants as the winning candidates. Against the decisions of the IOB, the Applicants initiated an administrative conflict on which the regular courts decided on the claim. The Basic Court rejected their claim as ungrounded; The Court of Appeals also rejected their appeal as ungrounded; and, finally, the Supreme Court also rejected their request for extraordinary review as ungrounded. In other words, the regular courts considered that the Applicants’ acts of appointment were not lawful and that the IOB decided correctly when it annulled the results of the said vacancy. Before the Constitutional Court, the Applicants challenged the decision of the regular courts, alleging that their rights and freedoms guaranteed by Articles 31, 49 and 55 of the Constitution and Article 6 of the ECHR were violated.

After considering the Applicants’ allegations, the Court concluded that:

• the allegations of a violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR with regard to the reasoning of the court decisions are manifestly ill-founded on constitutional basis and as such are to be rejected as inadmissible in accordance with Article 113.7 of the Constitution and Rule 39 (2) of the Rules of Procedure;
• the allegations of a violation of Article 49 of the Constitution regarding the right to work and exercise profession are manifestly ill-founded on constitutional basis and as such are to be rejected as inadmissible in accordance with Article 113.7 of the Constitution; and Rule 39 (2) of the Rules of Procedure; and
• the allegations of a violation of Article 55 of the Constitution in respect of the limitation of human rights and freedoms are not adequately clarified and as such are to be rejected in accordance with Article 48 of the Law in conjunction with Rule 39 (1) (d) of the Rules of Procedure.