Constitutional Court

KI145/20, Applicant: Hafize Gashi, constitutional review of Decision Rev. no. 244/2020 of the Supreme Court of Kosovo, of 27 July 2020

KI145/20, resolution on inadmissibility, adopted on 26 March 2021

Keywords: individual referral, manifestly ill-founded referral, erroneous interpretation of the law, inadmissible referral.

The Applicant challenges before the Court the Decision[Rev.no.244/2020]of the Supreme Court of Kosovo, of 27 July 2020, in conjunction with the Decision [Ac.no.265 /2015] of the Court of Appeals of Kosovo, of 20 August 2020.

The circumstances of the present case relate to the fact that the Applicant’s husband Xh.G., who had been employed by the Kosovo Electricity Company, was terminated his employment relationship by the latter on 22 October 1990.  Following a claim filed by XH.G. with the Municipal Court in Prishtina, against the Decision on the termination of employment relationship, the Municipal Court by Judgment [P1.No.237/92] had rejected his statement of claim. Subsequently, Xh.G. had filed an appeal against the above Judgment, with the District Court in Prishtina, and the latter by Decision [Gž.no.496/93], had approved the appeal of Xh.G. by remanding the case for reconsideration to the Municipal Court in Prishtina. The Municipal Court in Prishtina did not have the opportunity to decide on the case in the years 90/99. Later in 2003, the Municipal Court in Prishtina had allowed the reconstruction of the case file. In 2010, Xh.G. had passed away. The Applicant, acting in her capacity as heiress, had initiated the proceedings in the Basic Court in Prishtina, to ascertain that the Decision to dismiss Xh.G. from work was unlawful and at the same time she had filed a claim for compensation of salaries. The Basic Court in Prishtina by Decision [C1.no.173/2003] had decided to terminate the proceedings in this case as the rights requested by the Applicant cannot be inherited. The decision of the Municipal Court was confirmed by the Court of Appeals and the Supreme Court.

The Applicant challenges these findings before the Court, by alleging a violation of Article 31 of the Constitution and stating that the Supreme Court by the challenged decision, which confirmed the decisions of the lower instances, whereby the proceedings in this legal matter were terminated, by calling upon Article 282 of the Law on Contested Procedure, had applied the legal provisions in an erroneous manner to the detriment of the Applicant. In essence, the Applicant alleges that in the present case the proceedings should have not been terminated, given the fact that the Applicant is the sole heir of Xh.G. and that she had an interest in this legal matter. The Applicant did not further elaborate on how the Law on Contested Procedure was erroneously applied.

The Court, having assessed the Applicant’s allegations, found that all regular courts had treated and reasoned the Applicant’s allegations, including those relating to the erroneous interpretation of the provisions of the Law on Contested Procedure. Moreover, the Court finds that the Supreme Court has clearly stated that pursuant to Article 204 of the Law on Obligational Relationships, personal income from employment relationship cannot be passed to descendants, unless they have been confirmed by a final judgment, whilst in the present case those incomes have not been confirmed as such.

Consequently, having applied the standards of its case law and of the European Court of Human Rights, the Court found that the Referral is inadmissible because the Applicant’s allegations for a violation of Article 31 of the Constitution are manifestly ill founded due to a “clear or apparent absence of violation”, and consequently inadmissible, in accordance with paragraph 7 of Article 113 of the Constitution, Article 47 of the Law and Rule 39 (2) of the Rules of Procedure.