Constitutional Court

KI144/18, Applicant: Jashar Krasniqi, Constitutional review of Judgment Rev. No. 198/2018 of the Supreme Court of Kosovo, of 2 July 2018 

KI144/18, Resolution on Inadmissibility adopted on 9 December 2020, published on 5 January 2021

Keywords: individual referral, equality of arms, right to be heard, right to fair and impartial trial, inadmissible referral

In the circumstances of the present case, the Applicant was dismissed from work by decision of the Dean of the Faculty of Mathematical and Natural Sciences of the University of Prishtina on the grounds of serious violation of work duties, namely abusing position and authority – falsifying document.

The Applicant’s case was reviewed in all instances of the regular judiciary up to the Supreme Court. The Supreme Court assessed: (i) that the second instance court had correctly applied the legal provisions of Administrative Direction no. 2003/2 determining the termination of employment in the civil service; (ii) the statements of witnesses HK, IK and HT are related to the determination of factual situation for which, based on Article 214 paragraph 2 of the LCP, the revision cannot be filed; (iii) the allegations of non-assessment of the statement of witness RR and failure to provide reasons for the expertise of the forensic expert were assessed as having no influence because other existing evidence established serious violations of work which led the respondent to terminate the employment relationship with the Applicant; (iv) that the Applicant himself has asserted the evidence examined which has made the conduct of the disciplinary proceedings unnecessary; (v) the allegation of violation of the principle of direct hearing of the parties is unfounded, because the second instance court examines the case only in a session of the trial panel and only exceptionally the appeal is examined in a court session in cases provided under Article 190 of the LCP – and, that (vi) during the course of the proceedings, the lower instance courts have examined sufficient evidence to establish violations which the Applicant is charged with.

In the proceedings before the Constitutional Court, the Applicant alleged a violation of his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR. In addition, the Applicant alleges that as a result of the violation of the right to fair and impartial trial, Article 49 [Right to Work and Exercise the Profession] of the Constitution was also violated.

With regard to the Applicant’s allegations, the Court noted: (i) that the Supreme Court assessed that the allegation of a violation of the principle of direct hearing of the parties is ungrounded, because the second instance court examines the case only in the session of the trial panel and only exceptionally the appeal is examined in the court session in the cases foreseen according to Article 190 of the LCP; (ii) that the Applicant was given the opportunity to respond to the appeal of the FMNS, which he also used by the submission of 2 October 2014 submitted to the Court of Appeals; and; that, (iii) the Court of Appeals did not change the factual situation but only assessed the application of the law.

Finally, the Court found that the Referral is manifestly ill-founded on constitutional basis, and is to be declared inadmissible, as established in Article 113.7 of the Constitution, provided for in Articles 20 and 48 of the Law, and further specified in Rule 39 (2) of the Rules of Procedure.