Constitutional Court

KI07/19, Applicant: Shemsi Hajrizi, Constitutional Review of the Decision on Suspension of Employment Relationship, of 19 October 2016

KI07/19, Resolution on Inadmissibility, of 4 September 2019, published on 24 September 2019

Keywords: Individual Request, principle of subsidiarity, non-exhaustion of legal remedies

On 19 October 2016, the Ministry of Justice had issued Decision no. 1239, and suspended the Applicant’s employment relationship, inter alia, justifying that the Applicant was suspended from his job and duties with 50% of the base salary, starting from 18.10.2016 and pending the completion of the criminal proceedings. The Applicant was entitled to file an appeal against this Decision with the Independent Oversight Board within thirty (30) days of receipt of this Decision.

The Applicant failed to specify in his referral which rights and freedoms guaranteed by the Constitution were violated by the decision on termination of the employment* relationship. He essentially alleges that although under item 2 of the challenged Decision it is foreseen that the Applicant will receive 50% of the salary pending the completion of the criminal proceedings, this, according to the Applicant, has taken place until September 2018. The Applicant claims that his personal income has been unlawfully withheld from 1 October 2018.

The Court had found that the Applicant, after having received the Decision on the suspension of his employment on 10 October 2016, failed to take any legal action, namely did not use the legal remedies provided by law whereby he could have attempted to challenge the legality of the decision on Suspension of the employment relationship. Thus, the Court concludes that the Applicant, in the present case, has waived his right to avail himself of the legal remedy which, in accordance with the applicable law, was at his disposal, and therefore concludes that he has not had exhausted all legal remedies provided by law.

The Court found that the Applicant has not exhausted all legal remedies provided by law and that the Referral is inadmissible pursuant to Article 113.7 of the Constitution, Article 47.2 of the Law and Rule 39 (1) (b) of the Rules of Procedure.