Constitutional Court

The Applicant, a terminated municipal employee who won reinstatement from the Independent Oversight Board, filed a Referral pursuant to Article 113.7 of the Constitution, asserting that he should have been included as an interested party in his former employer’s appeal of the favorable disposition in his employment case to the Supreme Court. The Applicant asserted that his right to a fair trial, which the Court construed as falling under Articles 31 and 53 of the Constitution and Article 6.1 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), was infringed because neither the employer nor the Supreme Court notified him of the appeal or its disposition, The Court held that the Referral was admissible pursuant to Article 113.7 because prescribed remedies were unavailable to the Applicant in view of the failure of the Supreme Court to serve him with a copy of the judgment as an interested party, citing Articles 52.6 and 53 of the 1977 Law on Administrative Disputes, AAB-RIINVEST University L.L.C. vs. Government of Kosovo, Cinar v. Turkey, Colozza v. Italy, Sejdovic v. Italy, and because the Court found that there was no evidence that the Applicant was informed about either the potential for reopening the Supreme Court case or initiating a new matter, On the merits, the Court held that the Applicant should have been summoned to the court proceedings, which would have given him notice of the appeal and an opportunity to present arguments and evidence, noting that the Supreme Court initiated the proceedings and reached a conclusion without notice to the Applicant. The Court noted that under Article 31 of the Constitution everyone is entitled to equal protection of rights in court proceedings, as well as a fair and impartial public hearing, and that it is bound under Article 53 of the Constitution to resolve disputes consistently with the European Court of Human Rights (ECtHR), which implicates similar guarantees under Article 6.1 of the ECHR. It reasoned that, although the right to take part in civil or criminal proceedings is not expressly mentioned in Article 6.1, the ECtHR recognized that the right is implicit, citing Colozza v. Italy and Ziliberg v. Moldova. The Court reasoned that Article 31 and Article 6.1 were therefore applicable in the Applicant’s case, The Court noted that the right to a fair trial is derived from the right to judicial protection under Article 54 of the Constitution, which includes a right to court access, citing Golder v. the United Kingdom, and the right to court resolution of a dispute, as well as an opportunity to prepare a case and attend hearings, citing Gusak v. Russia, The Court highlighted that a party’s right to court access would be abrogated if the party was kept ignorant about court proceedings and decisions, especially when court decisions may bar further examination of the claim, citing Sukhorubchenko v. Russia, The Court determined that the Applicant’s employer submitted an appeal regarding a case in which the Applicant was the prevailing party, and that the appellate outcome could have had a substantial impact on the Applicant’s civil rights. It also noted that although Article 16 of the Law on Administrative Disputes deems any person potentially affected by disposition of a dispute to be a necessary party, the Applicant was not included, For the reasons stated, the Court issued a Judgment reflecting a breach of Article 31 of the Constitution and Article 6.1 of the ECHR, declaring that the disputed Supreme Court judgment was invalid, remanding the case to the Supreme Court for reconsideration in conformity with the Court’s Judgment, and retaining jurisdiction over the case pending compliance with its Judgment