Decisions published in March 2024

11.04.2024

In March 2024, in the Constitutional Court:

• fifteen (15) cases were reviewed;
• decisions were rendered for thirteen (13) cases:
• fifty six (56) decisions were published;

In this period, on the Constitutional Court’s webpage are published (i) five (5) Judgments; (ii) forty eight (48) Resolutions on Inadmissibility; (iii) two (2) Decisions to reject the Referral and (iv) one (1) Resolution on non-enforcement.

Judgments
__________________________________
I.
1. KI43/23
Applicant: Armend Hamiti
Published on: 11 March 2024
Request for constitutional review of Judgment [AA. no. 37/22] of the Supreme Court of the Republic of Kosovo, of 18 January 2023

The Court assessed the constitutionality of Judgment [AA. no. 37/22] of 18 January of the Supreme Court of the Republic of Kosovo in conjunction with Decision [KPK/ No. 1513/2022] of 29 November 2022 of the Kosovo Prosecutorial Council (hereinafter: the KPC). The case is related to the disciplinary proceedings initiated by the Chief Prosecutor of the Basic Prosecutor’s Office, in the capacity of the Competent Authority based on the applicable law, against the Applicant, who exercises the function of the Prosecutor in the Serious Crimes Department in the Basic Prosecutor’s Office in Prishtina. The aforementioned proceedings were initiated after a news item was published in a portal with several photographs of a meeting between the Applicant and Sh.K., convicted of various criminal offences. As a result, based on the case file, the KPC established the Investigation Panel for the Conduct of Disciplinary Investigations against the Applicant. The composition of this panel was then changed by the Chair of the KPC, in order to replace one of the panel members, on the grounds that he was on annual leave. The Applicant then turned to the Agency for Prevention of Corruption (APC), requesting it to assess whether the initiation of the disciplinary proceedings by the Applicant’s superior, as the competent authority, represents a conflict of interest. The KPC suspended the disciplinary proceedings until the decision-making of the APC, which after examining the request, found that the initiation of the disciplinary proceedings by the superior of the Applicant did not constitute a conflict of interest. In the meantime, the Applicant requested the KPC (i) to replace the member of the Investigation Panel on the grounds that the latter was replaced unlawfully by an incompetent body, namely the Chair of the KPC and not by the KPC as a collegial body; (ii) to suspend the disciplinary proceedings on the grounds that it was conducted in violation of the legislation in force; (iii) contested the mandate of the Investigation Panel on the grounds that the legal deadline for undertaking investigative actions has expired; and requested (iv) the exclusion of all members of the Investigation Panel, on the grounds that all relevant members are from his birthplace. According to the clarifications given in the Judgment, (i) on 1 November 2022, the Investigation Panel submitted the Investigation Report to the KPC, according to which the actions of the Applicant resulted in a violation of Article 6 (Disciplinary offenses for prosecutors) of the Law no. 06/L-057 on Disciplinary Liability of Judges and Prosecutors; (ii) on 2 November 2022, the KPC recorded the decision to reject the Applicant’s request for the dismissal of three (3) members of the Investigation Panel, as well as obliged the latter to continue with the investigation and submit the written report within the specified deadline; while (iii) on 29 November 2022, the KPC approved the investigation report as grounded and as a consequence imposed on the Applicant the disciplinary sanction “Public written reprimand”. This decision was upheld by the Supreme Court. In his Referral submitted to the Court, the Applicant alleged that the KPC and the Supreme Court violated his constitutional right to a fair and impartial trial 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 European Convention on Human Rights, since they did not reason their decisions, respectively, they did not consider his appealing allegations at all, which were related, among other things, (i) with the legal competence of the Chair of the KPC to replace the member of the Investigation Panel; (ii) the legality of the suspension of the disciplinary proceedings while the case was being handled in relation to the conflict of interest in the APC; (iii) with the claim that the mandate of the Investigation Panel had expired as a result of the expiration of the legal deadline for undertaking investigation actions; as well as (iv) proceeding with the report of the Investigation Panel in the KPC, whereas the latter had not yet rendered a decision regarding the request for the exclusion of the members of this panel. In order to address the Applicant’s allegations, the Court first (i) elaborated the general principles regarding the right to a reasoned court decision, as guaranteed by Article 31 [Right to Fair and Impartial Trial] in conjunction with Article 6 (Right to a fair trial) of the European Convention for the Protection of Human Rights; and (ii) then applied the same to the circumstances of the present case. In this context and according to the general principles and relevant applicable provisions, elaborated in detail in the Judgment, the Court assessed that the Supreme Court, by the contested decision, did not address the essential allegations raised by the Applicant that were related, among others, to (i) the legality of the composition of the Investigation Panel; (ii) suspension of the disciplinary proceedings; as well as (iii) deciding the case by the Investigation Panel outside the legal deadline. Therefore, the Court, in order for the decision of the Supreme Court to be in accordance with the Applicant’s right to a reasoned court decision, remanded the latter for reconsideration to the Supreme Court. The Judgment clarifies that the findings of the Court in this Judgment relate only to procedural guarantees, namely the Applicant’s right to an impartial and independent judicial process in the context of a reasoned court decision. The Judgment does not prejudice the epilogue of further court proceedings.

You can read the notification regarding the Judgment by clicking here

You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here

2. KI103/23
Applicant: Energy Regulatory Office of the Republic of Kosovo
Published on: 11 March 2024
Request for constitutional review of Judgment [Arj. no. 116/2022] of the Supreme Court of the Republic of Kosovo, of 9 March 2023

The Court assessed the constitutionality of Judgment [Arj. no. 116/2022] of 9 March 2023 of the Supreme Court of the Republic of Kosovo. The circumstances of the present case concern the lawsuit of the Ombudsperson (i) for the annulment of the Decision of 6 February 2012 of the Energy Regulatory Office “on the reduction of electricity distribution losses” as unlawful ; as well as (ii) on the request for compensation of damage to consumers who have been billed for electricity consumption in the four (4) northern municipalities of the Republic of Kosovo. The Ombudsperson alleged before the regular courts, among other things, that (i) the billing of electricity consumed in the four (4) northern municipalities of the Republic of Kosovo to other consumers who live in other municipalities of the Republic of Kosovo, constitutes a violation of Law no. 05/L-084 on the Energy Regulatory and Law no. 05/L-085 on Electricity; and (ii) this billing practice constitutes a violation of the right to property as guaranteed by Article 46 [Protection of Property] of the Constitution and a violation of the right to equality before the law as guaranteed by Article 24 [Equality Before the Law] of the Constitution. After assessing the allegations of the Ombudsperson, the Basic Court annulled the aforementioned Decision of the Energy Regulatory Office as unlawful and ordered the return of the amount billed, respectively the compensation of the damage to consumers who were billed for the consumption of electricity in the four (4) northern municipalities of the Republic of Kosovo for the period 6 February 2012 to 20 October 2017, in the amount of forty million eight hundred and fifty five thousand four hundred and eighty euro (40,855,480.00 EUR). The finding of the Basic Court was upheld by the Court of Appeals and the Supreme Court. According to the regular courts, in essence and among others, despite the fact that the Energy Regulatory Office has the competence with respect to the treatment of regulatory parameters and the billing of the cost of the lost electricity in the transmission and distribution system, billing the losses caused in the four (4) northern municipalities of the Republic of Kosovo to other consumers of the Republic of Kosovo, had resulted in unequal treatment of citizens, contrary to the provisions of Article 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution and Law no. 05/L -021 on the Protection from Discrimination, because there was no legitimate aim and there was no proportionality between the means employed and the aim pursued. The applicant, namely the Energy Regulatory Office, before the Court challenged the decision-making of the regular courts, claiming that the decisions were rendered in violation of the rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to fair trial) of the European Convention on Human Rights, as a result of (i) manifestly erroneous application of the law; and (ii) the lack of reasoning of the court decision. In assessing the allegations of the applicant, namely the Energy Regulatory Office, the Court first elaborated the general principles of its case-law and that of the European Court of Human Rights, regarding (i) the manifestly erroneous interpretation of the law; and (ii) the right to a reasoned judicial decision, as guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to fair trial) of the European Convention on Human Rights, and then (ii) applied the same to the circumstances of the present case. According to the clarifications given in the Judgment, the regular courts had taken into account and assessed the essential allegations of the applicant and by referring to the constitutional provisions and the provisions of the applicable laws, including (i) Articles 4 (Consumer rights) and 12 (Invoice) of Law no. 04/L-121 on Consumer Protection, which guarantee the basic rights of the consumer, including the right to protect the consumer’s economic interests and the right to protect property, and (ii) Article 194 (General rule) of Law no. 04/L-077 on Obligational Relationships in terms of unjust enrichment and the obligation of the applicant to make compensation for the damage to consumers who have been billed for the consumption of electricity in the four (4) municipalities of the Republic of Kosovo, during the period from 6 February 2012 to 20 October 2017, they found that such billing practice is not authorized by law and amounts to unequal treatment of the citizens of the four (4) municipalities vis-à-vis the citizens in the rest of the Republic of Kosovo. In the following, as it pertains to the connection of the allegations of the Energy Regulatory Office with the findings of the Court in its Judgment KO93/21, with the applicant Blerta Deliu-Kodra and 12 other deputies, the Judgment clarifies that that case differs substantively from the circumstances of the case at hand, among others, because in case KO93/21, the Court had reviewed the constitutionality of the Recommendations [No. 08-R-01] of 6 May 2021 of the Assembly of the Republic of Kosovo, according to which (i) KOSTT had been authorized to cover electricity deviations in the four (4) municipalities of the Republic of Kosovo, using revenues from its own budget, funds which would be compensated “by dividends or any other possible mechanism”; and (ii) the Government of Kosovo was obliged, within a period of six (6) months, to ensure the entire process of including in the billing system, according to the rules and laws in force, in cooperation with the responsible parties, for consumer billing in the four (4) the relevant municipalities with electricity. According to the clarifications given in Judgment KO93/21, the Court had held that the contested act of the Assembly was not in contradiction with the relevant provisions of the Constitution, among others, because the difference in the treatment of electricity consumers on the basis of residence, (i) pursued the legitimate aim of implementing the Connection Agreement with ENTSO-E, namely the European Network of Transmission System Operators for Electricity; and (ii) was of temporary nature. Taking into account the legal provisions, the legitimate aim and the temporary nature of the contested act of the Assembly, including the obligation of the Government to address the issues pertaining to the relevant billing system, the Court had assessed that contested act was proportional to the aim pursued. Consequently, the Court, in applying the elaborated criteria and principles with respect to a reasoned judicial decision, and in particular based on the interpretation given through the judgments of the regular courts contested before the Court, found that the same have addressed and responded to all essential allegations of the applicant raised through its response to the lawsuit and the appeal, respectively, as well as the through request for an extraordinary reconsideration of the court decision, and held that the challenged judgment of the Supreme Court is not in contradiction with the respective provisions of the Constitution of the Republic of Kosovo.

You can read the notification regarding the Judgment by clicking here

You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here

3. KI195/22
Applicant: Besim Morina
Published on: 11 March 2024
Request for constitutional review of Judgment [AA. no. 11/2022] of the Supreme Court of the Republic of Kosovo of 25 August 2022

The Court assessed the constitutionality of the Judgment [AA. no. 11/2022] of 25 August 2022 of the Supreme Court of the Republic of Kosovo. The circumstances of the present case are related to the local elections of 17 October 2021, where the Applicant was a candidate for member of the Municipal Assembly in the Municipality of Kamenica from among the political entity the Alliance for the Future of Kosovo. This political entity had won four (4) seats, while the Applicant managed to win one hundred and twenty seven (127) votes, which were not sufficient to be elected the member of the Municipal Assembly. However, after the resignation of Ms. D. K., the member of the Municipal Assembly from the ranks of the abovementioned political entity, the latter was replaced by the Central Election Commission with Ms. K. M., a candidate of the same gender, also from the same political entity, which in the local elections had received 4 votes less than the Applicant. The Applicant challenged the relevant replacement in the Central Election Commission, and then, in the Election Complaints and Appeals Commission, as well as in the Supreme Court, claiming that his rights to equality before the law and electoral rights were violated according to the provisions of articles 24 [Equality Before the Law] and 45 [Freedom of Election and Participation] of the Constitution, respectively, because according to the claim in the present case of replacement, priority should be given to the result of the vote and not to the replacement of members of the Municipal Assembly with a candidate of the same gender, since at the level of the Municipal Assembly the quota of thirty percent (30%) was exceeded, taking into account that of the twenty-seven (27) members of the Municipal Assembly, fifteen (15) or 55.55%, were men and twelve (12) or 44.40%, were women. In the context of these allegations, the Applicant also referred to the Court’s Judgment in cases KI45/20 and KI46/20 of 26 March 2021, with Applicants Tinka Kurti and Drita Millaku. The aforementioned authorities rejected the Applicant’s allegations, among others, because based on paragraphs 3 and 4 of Article 8 (Distribution of seats in the Municipal Assembly), as well as paragraph 10.3 (a) of Article 10 (Replacement of members of Municipal Assembly) of Law no. 03/L-072 on Local Elections (i) at least thirty percent (30%) of the total number of seats of the political entity must be filled by candidates of the opposite gender; and (ii) members of the Municipal Assembly are replaced by candidates of the same gender. The Applicant, before the Court challenged the decision-making of the responsible institutions, claiming that the latter were rendered in violation of the rights guaranteed by Articles 24 [Equality Before the Law] and 45 [Freedom of Election and Participation] of the Constitution, in conjunction with Article 14 (Prohibition of discrimination) of the European Convention on Human Rights and Article 3 (Right to free elections) of Protocol no. 1 of the aforementioned Convention. In this regard, the Court, referring also to the principles established by the Court’s Judgment in cases KI45/20 and KI46/20, examined: (i) whether the difference in treatment is “prescribed by law”; (ii) whether the difference in treatment pursued a “legitimate aim”; and (iii) if there is a relationship of “proportionality” between the difference in treatment and the aim that is intended to be achieved, and found that the contested acts were not rendered in violation of the rights of the Applicant, because based on Law no. 03/ L-072 on Local Elections, the minimum representation of thirty percent (30%) is also determined at the level of the political entity and not only at the level of the Municipal Assembly. While thirty percent (30%) representation in the respective Municipal Assembly was achieved, this was not the case in the context of the political entity. As a result, the Court concluded that the determination of the minimum representation of the minority gender at a minimum of thirty percent (30%), as such, is necessary, in order to enable the representation of the underrepresented gender, namely women, in the Municipal Assembly of Kamenica. clarifying that the Applicant was not discriminated against on the basis of gender, since the candidate K.M. was next in line, in the context of fulfilling the minimum quota of thirty percent (30%) through the election result within the aforementioned political entity.

You can read the notification regarding the Judgment by clicking here

You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here

4. KI168/22
Applicant: Nusret Kabashi, Bajram Kabashi and Driton Kabashi
Published on: 14 March 2024
Request for constitutional review of Decision [AC-I.-22-0418-A0001], of 22 September 2022, of the Appellate Panel of the Special Chamber of the Supreme Court of the Republic of Kosovo, of 22 September 2022

The Court assessed the constitutionality of Decision [AC-I.-22-0418-A0001], of 22 September 2022, of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo. The circumstances of the present case are related to the procedure for the purchase by A.K., on behalf of the company “Petrol Kabashi” l.l.c., of some properties of the former Social Enterprise AC “Bujqësia”, through the procedure of direct negotiation with the Privatization Agency of Kosovo. As a result, the Privatization Agency of Kosovo and “Petrol Kabashi” l.l.c. signed the Contract for the sale and transfer of the disputed properties. The Applicants filed a lawsuit with the Specialized Panel of the Special Chamber of the Supreme Court against the Privatization Agency of Kosovo and “Petrol Kabashi” l.l.c, requesting (i) the imposition of a security measure on the disputed properties; and (ii) cancellation of the above-mentioned contract, with the claim that the latter is contrary to Law no. 04/L-034 on the Privatization Agency of Kosovo. The Specialized Panel of the Special Chamber of the Supreme Court approved the request for a security measure until the final resolution of the case. However, after the appeal of the respondents filed with the Appellate Panel of the Special Chamber of the Supreme Court, the latter approved the appeals and modified the decision of the first instance regarding the security measure. The Appellate Panel of the Special Chamber of the Supreme Court, when modifying the decision regarding the security measure, emphasized that as a criterion for granting the security measure, among other things, is the damage that may be caused to the party if the security measure is not approved. Regarding the criterion in question, it considered that in the present case the claimed damage has already occurred and cannot be avoided, but it can be repaired in monetary terms if the claimants manage to succeed in their lawsuit on the merits of this contested case, thus assessing that the requirements for the imposition of an interim measure regarding the contested properties have not been met. The Applicants before the Court alleged that by the relevant Decision of the Appellate Panel of the Special Chamber of the Supreme Court, their rights guaranteed by Article 31 [Right to Fair and Impartial Trial] and Article 46 [Protection of Property] of the Constitution in conjunction with Article 6 (Right to a fair trial) and Article 1 (Protection of property) of Protocol No. 1 of the European Convention for the Protection of Human Rights have been violated, among others, because the contested decision does not address their essential allegations regarding the legality of the aforementioned decision, including those related to the need for the security measure. The Court, after elaborating (i) on the general principles regarding the right to a reasoned court decision, as guaranteed by the aforementioned articles of the Constitution and the European Convention on Human Rights; and (ii) applied the same to the circumstances of the present case, assessed that the Appellate Panel of the Special Chamber of the Supreme Court in the present case did not struck a fair balance between the litigants in this procedure, because it did not address any of the essential allegations and arguments, which in the present case include (i) the possibility that through the rejection of the request for interim measure, irreparable damage could be caused to the Applicants; as well as (ii) not giving a specific answer regarding the decisive allegation in the context of the lack of procedural legitimacy of the PAK. The Court reiterated that, based on the case law of the European Court of Human Rights and the Court, the regular courts have the discretion to assess the arguments of the parties to which an answer must be given, however, addressing the essential and decisive allegations of the respective parties is mandatory in the context of the right to a reasoned court decision. In the end, the Court emphasized that its Judgment was rendered only in relation to the procedure for the suspension/postponement of the execution of the contested decisions until the regular courts decide on the merits of the lawsuit. The issue of the legality of the aforementioned decisions is under review before the regular courts and the Court’s Judgment in this case does not in way prejudice their decision-making regarding the merits of the lawsuit.

You can read the notification regarding the Judgment by clicking here

You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here

5. KI178/22
Applicant: Ibrahim Tërnava
Published on: 11 March 2024
Request for constitutional review of Judgment [Rev. no. 59/2021] of the Supreme Court of the Republic of Kosovo of 6 May 2022

The Court assessed the constitutionality of Judgment [REV. no. 59/2021] of 6 May 2022 of the Supreme Court of the Republic of Kosovo. The circumstances of the present case are related to the Applicant’s lawsuit for the annulment of the decision of the respondent, namely the Kosovo Railways, whereby the employment relationship of the latter was terminated, which provided for the pending pension, for the employees of the Railways who had reached the age of 60 or had accumulated at least 35 years of employment in 2001, based on the Administrative Instructions of the Department of Transport and Infrastructure no. 2001/3 of 27 February 2001. By the aforementioned lawsuit, the Applicant requested (i) his reinstatement to the working place; and (ii) compensation of salaries for the period 28 February 2001 to 1 October 2007. After his case was remanded for reconsideration by the regular courts several times, during three (3) court proceedings, which were remanded for retrial, the Applicant’s lawsuit has been approved in principle since the first decision of the Municipal Court of 12 February 2003, until the third court procedure which was remanded for retrial by the Supreme Court by the decision of 12 April 2012. Subsequently, on 5 January 2016, the Basic Court approved the Applicant’s lawsuit and (i) annulled the aforementioned Decision of the respondent; (ii) obliged the respondent to return the Applicant to the working place; and (iii) to compensate him in the name of personal income the amount of 16,646.37 euro for the pension contribution, as well as other procedural costs. The finding of the Basic Court was upheld by the Court of Appeals, while the Supreme Court modified the Judgments of the Basic Court and the Court of Appeals, rejecting the Applicant’s lawsuit as ungrounded. The Applicant challenged this decision of the Supreme Court before the Court claiming 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 European Convention on Human Rights, as a result of the lack of reasoning of the court decision, including in the context of the lack of consistency of the case law of the regular courts. The Applicant emphasizes the lack of reasoning by the Supreme Court, among others, in the context of (i) the applicability of the Administrative Instruction of the Department of Transport and Infrastructure no. 2001/3; and (ii) the lack of consistency of case law, as a result of the different decision-making by the Supreme Court in four (4) cases with the same factual and legal circumstances. The Court after elaborating on the general principles of its case law and that of the European Court of Human Rights, in the context of (i) the reasoned court decision, including related to the lack of consistency of case law; and then (ii) applied the latter to the circumstances of the present case. The Court found that unlike all other Judgments and which the Applicant submitted to the Court and which fully correspond to the factual and legal situation of the Judgment rendered in the case of the Applicant, the Supreme Court applied Administrative Instruction no. 2001/3 in the assessment of the legality of the termination of the employment relationship of the employees, namely the Applicant. In this context, the Court emphasized that it takes into account the possibility that regular courts, when building the case law, may render different decisions, which reflects the development of the case law. However, it emphasized that based on the case law of the Court and that of the European Court of Human Rights, departure from the consistency of the case law must have objective and reasonable justifications and reasoning, which, in the present case, are missing in the Supreme Court’s Judgment, and as a consequence, the latter must be remanded for reconsideration by the Supreme Court.

You can read the notification regarding the Judgment by clicking here

You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here

Resolutions on Non-Enforcement
__________________________________
II.
In one (1) Decision on non-enforcement published by the Court, the latter in accordance with Article 116 [Legal Effect of Decisions] of the Constitution of the Republic of Kosovo, Article 19 (Taking of the decisions) of the Law on the Constitutional Court of the Republic of Kosovo and with Rule 60 (Enforcement of Decisions) of the Rules of Procedure, found that the Judgment of the Constitutional Court of the Republic of Kosovo of 3 February 2021 in case Kl86/18, with the applicant Slavica Dordevic, has not been enforced by the responsible authorities of the Republic of Kosovo.

6. KI86/18
Applicant: Slavica Đordević
Published on: 11 March 2024
Decision on non-enforcement regarding Judgment no. KI86/18 of the Constitutional Court of the Republic of Kosovo of 3 February 2021