Constitutional Court

KI115/19, Applicant: Sadete Jusufi, Constitutional review of Decision Rev. no. 53/2019 of the Supreme Court of Kosovo, of 20 March 2019

KI115/19, Resolution on Inadmissibility, adopted on 11 March 2020, published on 22 April 2020

Keywords: individual referral, administrative procedure, manifestly ill-founded referral, inadmissible referral

The circumstances of the case include an employment  dispute, which is related to the interpretation of Administrative Instruction 17/2000 on the Establishment of a Central Board for the Training of Medical Specialists, on the basis of which the Applicant in 2001 signed a Contract on the Commencement of the Specialist Training, based on in which the Applicant and now the Main Family Medicine Center in Prishtina agreed that in exchange for completion of the specialization lasting  3 (three) years and supported by  a payment, the Applicant was obliged to work 5 (five) years for the public health service in the Republic of Kosovo. Upon completion of the specialization in 2005, the Applicant was denied this opportunity. She started the court proceedings in 2014. All three instances of the regular courts rejected the claim, appeal and revision of the Applicant, respectively, by reasoning that her initial claim in 2014 was out of time. The Applicant challenges this finding of the regular courts before the Court, by alleging   violations of Article 24 [Equality before the Law] and 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights as well as Articles 32 [Right to Legal Remedies] and 49 [Right to Work and Exercise Profession] of the Constitution.

In assessing the Applicant’s allegations relating to Article 31 of the Constitution in conjunction Article 6 of the European Convention on Human Rights, the Court clarified that the regular courts had dealt with and clarified her allegations regarding the (i) erroneous interpretation of the Law on Associated Labor of 1976 as amended and supplemented in 1987, applicable in the circumstances of the present case, according to  Article 224 of which, her claim was declared as out of time; and (ii) the fact that the decision on termination of  employment, in addition to having not been submitted to her, was also in contradiction with the applicable legal regulations. The Court also clarified the differences of its case, with the Judgment of the Court KI69/16 of 6 June 2018, involving the Applicant Nora Dukagjini-Salihu, which the Applicant had referred to by alleging a lack of consistency in the case law. Consequently, the allegations of the Applicant with respect to the violation of the aforementioned articles were declared inadmissible as manifestly ill founded on constitutional basis.

While in assessing the allegations of the Applicant relating to Articles 24, 32 and 49 of the Constitution, the Court (i) regarding the first, clarified that in the circumstances of the concrete case, the Applicant did not specify any claim concerning any difference in the treatment and consequently failed to justify or substantiate her allegations for violation of Article 24 of the Constitution; (ii) regarding the second, it clarified that the Applicant has had an effective remedy at her disposal and that the failure to meet the deadlines for the submission of the statement of claim and  appeals could in no way result in argumentative allegations for a violation of this right; and (iii) regarding the last one, the Court clarified that the Applicant’s allegations do not relate to the denial of the right to work and exercise the profession, and that there is nothing in the Applicant’s allegation that would justify the finding that constitutional rights guaranteed by the said Article have been violated.

Consequently, the Referral was declared inadmissible as manifestly ill founded on constitutional basis, as stipulated in Article 113.7 of the Constitution and further specified in Rule 39 (2) of the Rules of Procedure.