Constitutional Court

KI133/20, Applicant: Raiffeisen Bank Kosovo J.S.C., Constitutional review of item II of the Judgment [Rev. No. 12/2020] of the Supreme Court of Kosovo, of 19 February 2020

KI133/20, Judgment, of 30 March 2022, published on 20 May 2022

Key words: Individual referral, right to a fair and impartial trial, right to legal certainty, divergence in the case-law, admissible referral

The circumstances of the case are related to a Notification of the Bank on termination of an employment contract with F.S. due to a breach of work duties by the latter with regard to authorizing an unpermitted transaction, according to a finding of the internal revision of the Bank. As a consequence, F.S. filed a claim with the Municipal Court in Prizren requesting the annulment of the abovementioned Notification of the Bank and requested to be reinstated to her workplace. The Basic Court in Prizren approved the claim of F.S. and annulled the Notification of the Bank as unlawful, reasoning, in essence, that the respective Notification had not been issued based on disciplinary proceedings as provided by the 1989 Law on Labor Relationship which is applicable in the circumstances of the case, in view of the fact that UNMIK Regulation no. 2001/27 does not repeal the provisions of the 1989 Law on Labor Relationship related to the disciplinary proceedings.  The Court of Appeals and the Supreme Court, respectively, confirmed the legal stance of the Basic Court.

The Applicant, among others, alleged violation of his right to a fair and impartial trial as guaranteed by Article 31 of the Constitution and Article 6 of the European Convention on Human Rights due to a breach of the legal certainty as a result of contradictory decisions or divergence in the case-law of the Supreme Court. In support of these allegations, the Applicant submitted to the Court five other judgments of the Supreme Court, in which the Supreme Court had interpreted and applied the provisions of the laws applicable to employment differently, namely with respect to the assessment of the legality of the Notifications on termination of the employment relationship and the conduct or non-conduct of disciplinary proceedings, it applied UNMIK Regulation no. 2001/27 only and not the 1989 Law on Labor Relationship.

The Court examined the Applicant’s allegations related to the breach of legal certainty as a result of contradictory decisions of the Supreme Court in the application and interpretation of the legal provisions related to the termination of the employment relationship. For that purpose, the Court first elaborated and then applied to the circumstances of the concrete cases, (i) the fundamental principles concerning the consistency of the case-law as developed through the case-law of the European Court of Human Rights, and affirmed through the case-law of the Court itself; and (ii) the relevant criteria on the basis of which the latter assess whether the lack of consistency, namely the divergence in case-law, constitutes a violation of the principle of legal certainty, namely violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, including whether: (a) the divergences in the case-law are “profound and longstanding”; (b) the domestic law provides for mechanism capable of resolving these divergences; and (c) those mechanisms have been applied and to what effect.

In this regard, the Court after analyzing also the reply of the Supreme Court on the questions posed by the Court with respect to its legal stance in the interpretation and application of the 1989 Law on Labor Relationship and UNMIK Regulation no. 27/2001 to the respective employment disputes, initially emphasized that, based on all the cases in consideration before the Court, it results that the Supreme Court, in assessing the legality of the termination of the employment relationship as a result or not, of the conduct of disciplinary proceedings, had not applied the 1989 Law on Labor Relationship and UNMIK Regulation no. 27/2001 consistently, by interpreting them in some cases together and in some cases isolated from one another, thereby resulting in different decisions and stances as to whether an employment relationship can be terminated without the disciplinary proceedings being conducted or not. As a consequence, the Court found that in the context of that case-law of the Supreme Court: (i) there are “profound and longstanding divergences” in the interpretation and application of the provisions of the 1989 Law on Labor Relationship and of the Essential Labour Law, namely  UNMIK Regulation no. 27/2001; (ii) that there exist mechanisms of the Supreme Court for the harmonization of that case-law; and that (iii) this existing mechanism, as it has been stated by the Supreme Court itself, has not been used.

As a consequence of that finding, the Court emphasized that “profound and longstanding divergences” in the case-law of the Supreme Court, taken together with the non-use of the mechanism provided by law and designed to ensure the proper consistency within the case-law of the highest court in the country, have resulted in a breach of the principle of legal certainty and a breach of the  right to a fair and impartial trial of the Applicant. The Court also underlined that this finding concerns only the ineffective use of the Supreme Court’s mechanisms with a purpose of ensuring the necessary consistency of the case-law in service of the legal certainty and the principle of the rule of law, while it does not prejudice the outcome of the merits of the case or the legal stance that the Supreme Court will take and apply with respect to cases where judicial divergence has been identified.

Finally, based on the circumstances of the concrete case and the explanations provided in the published Judgment, the Court, unanimously, declared the Referral admissible and held that item II of the enacting clause of the Judgment [Rev. No. 12/2020] of 19 February 2020 of the Supreme Court of Kosovo, is not in compliance with Article 31 of the Constitution of the Republic of Kosovo in conjunction with Article 6 of the European Convention on Human Rights.