Constitutional Court

KI69/17, Applicant, Xhavit Arifi, Constitutional review of Judgment E. Rev. 340/2016 of the Supreme Court of Kosovo of 15 February 2017

KI69/17, Resolution on Inadmissibility of 30 January 2019, published on 27.02.2019

Key words: Individual referral, civil procedure, manifestly ill-founded referral,

The Applicant filed a referral with the Court requesting the constitutional review of the Judgment of the Supreme Court. He alleged violation of Article 49 [Right to Work and Exercise Profession] of the Constitution of the Republic of Kosovo. The Applicant, inter alia, alleges that the Supreme Court violated his right to work as the Judgment on revision modified the decisions of the lower instance courts which were in his favor because “they determined the factual situation different from the real situation”. The Applicant also emphasized that the employment contract was terminated to him, even though in the criminal proceeding he was acquitted of the offence related to the legal basis for which the employment relationship was terminated.

The Court found that the Supreme Court responded clearly, emphasizing that “The fact that the claimant has been acquitted of liability does not constitute a legal ground for approving the statement of claim of the claimant because the disciplinary and criminal proceedings are two proceedings that are conducted independently. Therefore, the submissions in the revision relating to the erroneous application of the substantive law are grounded for which this Court decided as in the enacting clause of this Judgment”.

The Court notes that the challenged Judgment of the Supreme Court does not in any way prevent the Applicant from working or exercising profession, and that such a prohibition measure had not been imposed by any of the decisions of the regular courts. Accordingly, there is nothing in the Applicant’s allegation that would justify the conclusion that his constitutional right to work and exercise profession has been violated (See, the case of the Constitutional Court, KI136/14).

In sum, the Court concludes that the Referral on constitutional basis is not justified and that the Applicant did not prove, nor substantiate the allegation of a violation of a constitutional right; therefore, pursuant to Rule 39 (2), the Referral is to be declared inadmissible as manifestly ill-founded.