Constitutional Court

KI 45/19, Applicant: Municipality of Vushtrri, Constitutional review of Judgment Ac. No. 4858/2018 15 of the Court of Appeals of 19 February 2019 

KI45/19, Resolution on Inadmissibility of 7 October 2020, published on 6 November 2020

Keywords:  individual referral, manifestly ill-founded referral on constitutional basis, principle of legal certainty, divergence of case law, “profound and long-standing differences”

1. On 6 May 2018, the Directorate of Education under the Applicant’s administration retired I.L., due to reaching the retirement age., I.L filed a lawsuit with the Basic Court in Mitrovica requesting the Applicant to pay 3 salaries in the name of the jubilee rewards and 3 salaries in the name of accompanying salaries for pension. The Basic Court, by Judgment C. No. 408/18] rejected as ungrounded the claim,  stating that, “the claimant does not have the right to the jubilee rewards and the accompanying salary, as it is an indisputable fact that he is not a member of the trade union of education, science and technology, referred to in Article 35, paragraph 8 and 9 of the collective agreement on education“.  Against the Judgment [C. No. 408/18] of the Basic Court, I.L. filed an appeal with the Court of Appeals, the Court of Appeals [by Judgment Ac. No. 4858/2018] approved the appeal of I.L. and modified the Judgment [C. No. 408/18] of the Basic Court of 26 October 2018, in order for it to approve the Applicant’s statement of claim. In the reasoning of Judgment, the Court of Appeals stated, inter alia: (i) “that the first instance court has erroneously applied the substantive law under Article 35 paragraph 8 and 9 of the Collective Agreement on Pre-university Education, because this would be discrimination and would be a condition of trade union membership for the exercise of rights, then this jeopardizes the right or freedom of association in the trade union organization, jeopardizes the principle of equality“ and (ii) that the statement of claim of I.L., ”has support in Articles 52 and 53 of the General Collective Agreement of  18 March 2014, which does not contain the constitutional provision that an employee should be a member of a trade union, Collective Agreement on Pre-University Education, in case of conclusion and signing, as a reference point, the same agreement was taken based on its principles so that this provision cannot be applied, as it is in contradiction with Articles 24 and 44 of the Constitution of the Republic of Kosovo”. In conclusion, the Court of Appeals stated that “based on the fact that the claimant is now entitled to three accompanying salaries by a modified judgment, and based on 22 years, 4 months and 18 days of work experience (or in short under 30 years) he is entitled to a basic salary of 75% for a period of 20 years of work experience “.

1. The Applicant specifically stated that in another case, which according to him contained identical factual and legal circumstances as those in his case, the Court of Appeals in its Judgment rejected the appeal of the appellant and upheld the first instance judgment. In relation to this allegation, the Applicant alleges that the Court of Appeals, because it decided differently in two (2) identical cases, violated his right to equality before the Law and freedom of association, guaranteed by Articles 24 and 44 of the Constitution, all this in relation to the right to a fair and impartial trial, guaranteed by Article 31 of the Constitution, in conjunction with Article 6 of the ECHR, all as result of contradictory court decisions of the Supreme Court.

1. When assessing the admissibility of the Referral,  the Court found that the Applicant is an authorized party, and challenges an act of a public authority, namely Judgment Ac. No. 4858/2018 of the Court of Appeals of 19 February 2019, after having exhausted all legal remedies provided by law and submitted the Referral in accordance with the deadlines set out in Article 49 of the Law on the Constitutional Court. However, after applying the criteria according to which the Court and the ECtHR consider cases of divergence in relation to case law, starting from the assessment whether in the circumstances of the present case, (i) the alleged divergences in the case law are “profound and long-standing”; if this is the case, (ii) do mechanisms capable of resolving such divergences exist; and (iii) whether that mechanism has been applied and, if so, to what extent in the circumstances of the present case, the Court found that it is not possible to ascertain the existence of “profound and long-standing differences” in the case law of the Court of Appeals that endanger the principle of legal certainty, by invoking only one Decision of the Court of Appeals, issued 7 (seven) months earlier. Therefore, the Court found that the Applicant’s Referral is manifestly ill-founded on constitutional basis and declared it inadmissible, in accordance with paragraph 7 of Article 113 of the Constitution, Article 47 of the Law and paragraph (2) of Rule 39 of the Rules of Procedure.