Constitutional Court

KI116/21, Applicant: Sali Rexhepi, Constitutional review of Judgment Rev. No. 104/20 of the Supreme Court, of 25 February 2021

KI116/21, Judgment of 19 July 2022, published on 22 August 2022

Keywords: individual referral, labor dispute, right to a reasoned decision, inconsistency of the case law, admissible referral, violation of the right to a fair trial.

The circumstances of the present case are related to an employment relationship dispute that was initiated with the Notification of “Raiffeisen Bank Kosovo” for the termination of the Applicant’s employment contract. As a consequence, the Applicant had filed a statement of claim before the former Municipal Court in Prizren, whereby he had requested the annulment of the Notification, and the reinstatement to his working place. Initially, the Basic Court in Prizren had approved the Applicant’s statement of claim and annulled the aforementioned Notification of the Bank as unlawful, with the reasoning that no disciplinary proceedings had been conducted against him as stipulated in the Law on Labor Relations of 1989, which, according to the Basic Court was applicable in the circumstances of the case, considering that the UNMIK Regulation No. 2001/27 on the Essential Labor Law in Kosovo, does not repeal the provisions regarding the disciplinary proceedings of the Law on Labor Relations of 1989. Against such Judgment, the Bank had filed an appeal before the Court of Appeals, which had affirmed the Judgment of the Basic Court. However, the Supreme Court, acting upon the Bank’s request for the revision, had modified the Judgments of the two lower instances, with the reasoning that the Notification on termination of the employment contract is in compliance with the UNMIK Regulation No. 2001/27 on the Essential Labor Law.

The Applicant challenged before the Court the Judgment of the Supreme Court, alleging, inter alia, violation of his right to fair and impartial trial guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 [Right to a fair trial] of the European Convention on Human Rights on the grounds of the breach of legal certainty as a result of the contradictory decisions or divergence in the case law of the Supreme Court, given that the latter had decided differently in other cases with the same factual and legal circumstances.

The Court, while examining the Applicant’s allegations related to the breach of the principle of legal certainty as a result of the lack of consistency, i.e. divergence in the Supreme Court case law with respect to interpretation and application of the legal provisions related to the termination of the employment relationship, namely the UNMIK Regulation No. 2001/27 on the Essential Labor Law in Kosovo, in conjunction with the Law on Labor Relations of 1989, referred to its case law, especially the cases of the Court KI133/20 and KI78/21, both with the Applicant “Raiffeisen Bank Kosovo”, the Judgments of 30 March 2022, in which the Court had found violation of Article 6 of the European Convention on Human Rights, exactly in this context.

The Court in the aforementioned cases, having analyzed the response of the Supreme Court to the questions posed by the Court regarding its legal position in the interpretation and application of the Law on Labor Relations of 1989 and the UNMIK Regulation No. 27/2001 in the respective labor disputes, initially emphasized that, based on all the cases under review before the Court, it results that the Supreme Court, in assessing the legality of the termination of employment relationship as a result or not of the conduct of disciplinary proceedings, had not consistently applied the Law on Labor Relations of 1989 and the UNMIK Regulation No. 27/2001, interpreting them sometimes together and sometimes in isolation from each other, thus resulting in different decisions and positions as to whether an employment relationship may be terminated without the conduct of the disciplinary proceedings, or not. Consequently, by applying the case law of the European Court of Human Rights, the Court concluded that in the context of such case law of the Supreme Court (i) there are “profound and long-standing differences” in the interpretation and application of the provisions of the Law on Labor Relations of 1989 and those of the Essential Labor Law, namely the UNMIK Regulation No. 27/2001; (ii) that there are Supreme Court mechanisms for harmonization of this case law; and that (iii) such existing mechanism, as stated by the Supreme Court itself, has not been utilized.

As a result of such conclusion and based on the factual and legal similarities with the cases of the Court KI133/20 and KI78/21, in the present case, the Court concluded that the “profound and long-standing differences” in the case law of the Supreme Court, in conjunction with the non-use of mechanisms stipulated by law and designed to ensure appropriate consistency within the case law of the highest court in the country, have resulted in the breach of the principle of legal certainty and in violation of the right to fair and impartial trial of the Applicant.

Finally, based on the circumstances of the present case and also based on the clarifications given in the published Judgment, the Court has, unanimously, declared the referral admissible and concluded that the Judgment [Rev. No. 104/2020] of 25 February 2021 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 and remanded it for reconsideration to the Supreme Court.