KI 131/19, Applicant: Sylë Hoxha, Constitutional review of Judgment AML No. 1/2019 of the Supreme Court of 16 April 2019
KI 131/19, Resolution adopted on 12 March 2020, published on 22 April 2020
Keywords: individual referral, right to a reasoned decision, benefits of former senior officials, acting, inadmissible referral
The circumstances of the present case are related to the right to benefit from the status of former senior official, as established in Law No. 03/L-001 on Benefits to Former High Officials and Law No. 04/L-038 on Amending the No. 03/L-001 on Benefits to Former High Officials (hereinafter: the Law on Benefit to Former High Officials), of those officials who have exercised one of the functions defined by the abovementioned law, namely the function of the former President of the Assembly, the former Prime Minister, the former President of the Constitutional Court, the former Chief State Prosecutor and the former President of the Supreme Court. The present case is related to the right or not of the former acting State Prosecutor to benefit from the status of former senior public official, exercising the right to a monthly salary in the amount of seventy percent (70%) of the salary. of the respective function. Former Acting State Prosecutor, namely the Applicant, and who exercised this function by decision of the Kosovo Prosecutorial Council from 5 August 2014 until 21 April 2015, namely after the retirement of the previous Chief Prosecutor and until the election of the new Chief Prosecutor of the Kosovo Prosecutorial Council and his decree by the President of the Republic, claims that he is entitled to such a right. Initially, he requested to exercise the latter through a request to the Kosovo Prosecutorial Council, which rejected his request. The decision of the Kosovo Prosecutorial Council was subsequently upheld by all regular courts, including the Supreme Court, which reviewed the case, following a request for the protection of legality submitted by the State Prosecutor.
All courts, in essence, emphasized the difference between “exercising” a function and “election” or “decreeing” in a function based on the relevant constitutional and legal provisions, thus rejecting the Applicant’s allegations, and clarifying that (i) he has exercised this function on the basis of the relevant decision of the Kosovo Prosecutorial Council, and has not been elected/appointed to this position based on the procedure set out in paragraph 7 of Article 109 [State Prosecutor] of the Constitution; and (ii) consequently, he cannot gain the status of the former senior official based on the Law on Benefits to Former High Officials.
The Applicant challenges the findings of the regular courts before the Court, alleging violations of his fundamental rights and freedoms guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 54 [Judicial Protection of Rights] of the Constitution and Article 6 of the European Convention on Human Rights.
In assessing the allegations of the Applicant regarding the violations of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, in terms of the right to a reasoned court decision, the absence of which is claimed by the Applicant before the Court, the latter applied the general principles of its case law and of the European Court of Human Rights, and found that the challenged decisions of the regular courts were sufficiently reasoned in the circumstances of the present case. Furthermore, the Court clarified that the regular courts had the right to apply the Law on Benefits to Former High Officials, emphasizing that (i) the latter recognized the right to acquire the status of former senior official and consequently the right to the relevant benefits, only to former senior state officials appointed through the procedures set out in the Constitution and applicable laws, provided that they have exercised the relevant function for at least six (6) months; (ii) the benefits established in this law do not belong to other officials and who may have “exercised” this function, but have not been “appointed” in the manner prescribed by the Constitution and the relevant applicable laws, regardless of whether they have exercised the function for the period of six (6) months referred to in this law, and have exercised the full competencies of the respective function; (iii) that the specific counting of five (5) categories of functions in the abovementioned law, read together with other provisions of this law, implies the intention of the legislator to condition the benefit of these rights in the election/appointment of a senior official in accordance with the relevant constitutional and legal provisions, and the exercise of this function for at least six (6) months. The Court also clarified that the distinction between “election” and “exercise” of a function of senior official was made in case KO97/10, with the Applicant Jakup Krasniqi, Judgment of 28 December 2010.
Finally, the Court found that the substantive allegations of the Applicant before the regular courts regarding the erroneous interpretation of Article 3 of the Law on Benefits to Former High Officials were sufficiently reasoned by the latter, thus resulting in a procedure of which, in its entirety and with respect to the allegations of lack of a reasoned court decision, meets the criteria set out in the relevant case law in interpreting Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights. Therefore, the Court found the allegations of the Applicant regarding violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR to be inadmissible as manifestly ill-founded on constitutional basis.
Whereas, in assessing the Applicant’s allegations of violation of Articles 24 and 54 of the Constitution, the Court regarding the (i) former clarified that the Applicant did not specify any allegation regarding any difference in treatment and consequently has neither substantiated nor supported his allegations of violation of this article of the Constitution; and (ii) the second, clarified that those allegations are, in essence, the same as those for violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, and which the Court has already rejected as manifestly ill-founded on constitutional basis.
Therefore, the Referral was declared inadmissible as manifestly ill-founded on constitutional basis, as defined by Article 113.7 of the Constitution