Decisions published in April 2024

08.05.2024

In April 2024, in the Constitutional Court:

• twenty six (26) cases were reviewed;
• decisions were rendered for twenty three (23) cases:
• ten (10) decisions were published;

In this period, on the Constitutional Court’s webpage are published (i) one (1) Judgment; (ii) eight (8) Resolutions on Inadmissibility; and (iii) one (1) Decision to dismiss the Referral.

Judgments
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I.

1. KI38/23
Applicant: Flamur Dylhasi
Published on: 25 April 2024
Request for constitutional review of Decision [Rev. no. 205/2022], of the Supreme Court of the Republic of Kosovo, of 10 October 2022

The Court assessed the constitutionality of Decision [Rev. no. 205/2022], of the Supreme Court of the Republic of Kosovo, of 10 October 2022. The circumstances of the present case are related to a dispute regarding the employment relationship. According to the clarifications given in the Judgment, (i) the applicant signed an employment contract with the Kosovo Insurance Bureau (BKS), for a fix period of time, namely from 1 July 2015 to 30 June 2016; (ii) in February 2016, BKS rendered Decision [no. 331/16], which terminated the applicant’s employment contract, for which he was notified on 10 March 2016; and (iii) the applicant, on 21 March 2016, complained to the BKS authorities, but had not received any reply, and as a result, on 4 May 2016, he filed a claim with the Basic Court in Prishtina. The latter approved his claim and annulled the Decision of the BKS in entirety, which was also upheld by the Court of Appeals following the appeal of the BKS. However, the Supreme Court, acting upon the request for the revision of the BKS, by the contested Decision, modified the judgments of the lower instances, finding that the claim of the applicant was filed out of the thirty (30) day deadline stipulated by Article 79 (Protection of an Employee by the Court) of Law No. 03/L-212 on Labor.

The applicant before the Constitutional Court contested the aforementioned Decision of the Supreme Court, claiming the violation of his right to a fair and impartial trial guaranteed by Article 31 [Right to Fair and Impartial Trial], in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, in essence, arguing that the violation of the right to access to justice was a result of the Supreme Court’s erroneous calculation of the deadline for submitting a claim to the first instance court. In assessing the applicant’s allegations, the Court first (i) elaborated on the general principles of its case law and that of the European Court of Human Rights, regarding the principle of access to justice, and (ii) then, applied the latter in the circumstances of the present case. In this respect, the Court noted that the applicant submitted the claim to the Basic Court on the thirtieth (30th) calendar day, on 4 May 2016, namely after the fifteen (15) day deadline had passed to receive an answer to the complaint filed on 21 March 2016 with the BSK, the term which would legally end on 4 April 2016. From this date, according to the Court’s point of view, the applicant had at his disposal thirty (30) additional days, namely until 4 May 2016, to submit a claim to the Basic Court against the employer’s decision, which he did, in full compliance with the deadlines set by the provisions of Article 78 (Protection of Employees’ Rights), and 79 (Protection of an Employee by the Court) of Law No. 03/L-212 on Labor. As a result, and as explained in detail in the published Judgment, the Court found that by modifying the judgments of the lower instance courts, which were in favor of the applicant, based on erroneous calculation of the deadlines established in the Law on Labor, the Supreme Court denied him the right to access to justice and effective resolution of the dispute.

Therefore, the Court concluded that the Decision [Rev. no. 205/2022] of 10 October 2022 of the Supreme Court of the Republic of Kosovo, is not in compliance with the constitutional rights of the applicant, 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.

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 Inadmissibility
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II.
In five (5) Resolutions on Inadmissibility published by the Court, the latter found that the Applicants’ Referrals are inadmissible based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 48 (Accuracy of the Referral) of the Law, paragraph (2) of Rule 34 (Admissibility Criteria) of the Rules of Procedure because (i) the allegations of the Applicants reflect allegations with “apparent absence of a violation”, and/or (ii) the latter are “unsubstantiated or unreasoned”.

2. KI123/22
Applicant: Getoar Mjeku
Published on: 11 April 2024
Request for constitutional review of Judgment [ARJ. no. 36/2022], of the Supreme Court of the Republic of Kosovo of 13 June 2022