Constitutional Court

KI 193/18, Applicant: Agron Vula, Constitutional review of Decision Ac. No. 227/18 of the Court of Appeals of 18 September 2018, regarding non-enforcement of Decision A02 158/07 of the Independent Oversight Board of Kosovo of 25 February 2008

KI193/18, Judgment adopted on 22 April 2020, published on 12 May 2020

Keywords: individual referral, right to fair and impartial trial, right to effective legal remedies, judicial protection of rights, effective remedy, non-implementation of enforceable decision, compensation of damage

The Applicant requests the constitutional review of Decision Ac. No. 227/18 of the Court of Appeals, of 18 September 2018, regarding the non-enforcement of Decision A02 158/07 of the Independent Oversight Board of Kosovo, of 25 February 2008, alleging violation of fundamental human rights and freedoms  guaranteed  by Articles 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 49 [Right to Work and Exercise Profession] and 54 [Judicial Protection of Rights], of the Constitution of the Republic of Kosovo (hereinafter: the Constitution), in conjunction with Articles 6 (Right to a fair trial] and 13 [Right to an effective remedy], of the European Convention on Human Rights (hereinafter: the ECHR).

The Court found that the substantial aspects of this referral relate to the right to fair and impartial trial (Article 31 of the Constitution in conjunction with Article 6 of the ECHR), the right to effective legal remedies and the right to judicial protection of rights (Articles 32 and 54 of the Constitution, in conjunction with Article 13 of the ECHR).

The factual situation in the present case is presented as follows: in 2003 the Chief Executive Officer of the Municipal Assembly of Gjakova issued Decision 12 no. 01-139, for the “temporary suspension” of the Applicant from the working place – starting from 20 August 2003 until the completion of the procedure for ascertaining his disciplinary responsibility. Meanwhile, the Applicant complained to the Independent Oversight Board of Kosovo (hereinafter, the IOBK). On 25 February 2008 the IOBK, by Decision A 02 158/2005, partially approved the Applicant’s complaint and ordered the Municipality of Gjakova to conduct a new disciplinary proceeding against the Applicant, in accordance with the legal provisions in force. The IOBK held that: “This body examining the written evidence presented finds that: The suspension of the abovementioned was done in contradiction with the procedure provided by the Administrative Direction No. 2003/2 regarding the implementation of UNMIK Regulation No. 2001/36 on the Civil Service of Kosovo […]”.

Meanwhile, the Applicant’s case was conducted in administrative, contested and enforcement procedures, where a number of decisions were issued in favor but also to the detriment of the Applicant. The final decision in the case of the Applicant was Decision Ac. No. 227/18 of the Court of Appeals, of 18 September 2018, which rejected the Applicant’s statement of claim as inadmissible due to the existence of the litispendence.

In its review, the Court specifically emphasized the fact that the IOBK Decision was upheld in the enforcement proceedings by the Court of Appeals, as a last instance, by Decisions Ac. No. 1459/15 and Ac. No. 516/16, of 26 October 2015, namely 4 December  2017. These decisions of the Court of Appeals also upheld the decisions of the Basic Court in Gjakova, with the same number, E. No. 1100/12, of 31 October 2014, namely 27 February 2015, which allowed the enforcement of the IOBK Decision of 25 February 2008.

Regarding the enforcement of the decision of the IOBK and the connection with Article 31 of the Constitution, the Court emphasized that it would be meaningless if the legal system of the Republic of Kosovo would allow that a final judicial decision in the administrative procedure and enforceable remains ineffective in disfavor of one party. Therefore, non-effectiveness of the procedures and the non-implementation of the decisions produce effects that bring to situations that are inconsistent with the principle of rule of law (Article 7 of the Constitution) –  a principle that the Kosovo authorities are obliged to respect.

With regard to the effective resolution of the Applicant’s case, the Court held that the non-existence of legal remedies or other effective mechanisms for the enforcement of the IOBK Decision (regardless of what the epilogue would be for the Applicant from the enforcement of that Decision), violates the right to effective legal remedies, guaranteed by Article 32 and the right to judicial protection of rights, guaranteed by Article 54 of the Constitution, in conjunction with the right to an effective remedy, guaranteed by Article 13 of the ECHR.

In the end, the Court found that the non-enforcement of the IOBK Decision by the Municipality of Gjakova, especially after some decisions of the regular courts that allowed its enforcement, have caused violations of Articles 31, 32 and 54 of the Constitution, as well as Articles 6 and 13 of the ECHR.

The Court reiterated that the IOBK Decision did not stipulate that the Municipality of Gjakova, had to reinstate the Applicant to his working place, but ordered the Municipality of Gjakova to conduct disciplinary proceedings against the Applicant in accordance with the legal provisions in force for civil servants. Therefore, the Court did not address the issue of whether or not the Applicant should be reinstated to working place, namely if Article 49 of the Constitution has been violated.

With regard to the remedy of violations of the constitutional guarantees of the Applicant, the Court, taking into account the special circumstances of the case under consideration, assessed that it is obliged to be satisfied with the finding of violation of Articles 31, 32 and 54 of the Constitution, in conjunction with Article 6.1 of the ECHR and Article 13 of the ECHR, instructing the Applicant in civil proceedings, before the regular courts, for eventual compensation of damage.