Constitutional Court

The Applicants, 21 former employees of the Kosovo Energy Corporation (KEK), filed Referrals pursuant to Article 113.7 of the Constitution, asserting that their rights to property and a fair trial, which the Court construed as references to Article 1 Protocol 1 to the European Convention on Human Rights (ECHR) and Article 6 of the ECHR, were infringed by 21 judgments issued by the Supreme Court. The Applicants argued that they were unjustly deprived of pecuniary interests and were unable to obtain a remedy from ordinary courts. The Supreme Court reversed lower court decisions and approved KEK’s unilateral annulment of compensation agreements (“Agreements”) following early termination of the Applicants’ employment contracts that had otherwise provided them with rights to compensation until the Kosovo Fund on Pension-Invalidity Insurance was established and functioning. On the one hand, the Supreme Court concluded that KEK had fulfilled its obligations under the compensation agreement because the Invalidity and Pension Insurance Fund (IPIF) had been established, triggering termination of the agreement. On the other hand, the Ministry of Labour and Social Welfare (MLSW) disputed the Supreme Court’s findings, acknowledging that pensions for permanently disabled persons and individuals older than 65 years, but adding that the Law on Pensions establishing an IPIF had not yet been adopted, As to admissibility, the Court held that 15 Applicants were authorized parties pursuant to Article 113.7 of the Constitution, that they had fulfilled the exhaustion requirements of Article 113.7 and Article 47.2 of the Law on the Constitutional Court (“Law”), and that the 4-month deadline provided by Article 49 of the Law was inapplicable because the alleged Constitutional violation was continuing in nature. The Court held that the corresponding 15 Referrals were admissible, and that the 6 remaining Referrals were only partly admissible, excluding claims for compensation beyond the Applicants’ 65th birthdays while including claims for compensation relating to the period prior to their 65th birthdays.

As to the merits, the Court highlighted the rights to property encompassed by Article 46 and Article 1 of Protocol No. 1 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The Court reasoned that the Applicants had a legitimate expectation to temporary compensation under the Agreements until the IPIF became functional, an entitlement that was protected by Article 1 of Protocol No. 1, citing Ibrahimi, Prokshi and Mërlaku, as well as Gratzinger and Gratzingerova v. the Czech Republic. The Court concluded that KEK’s unilateral cancellation of the Agreements prior to the IPIF’s implementation infringed on their pecuniary property interests, and violated Article 46 and Article 1 of Protocol 1 of the ECHR, Noting the rights to a fair and impartial trial guaranteed by Article 31.1 of the Constitution and Article 6 of the ECHR, the Court cautioned that ordinary courts must resolve factual, as well as procedural and substantive legal disputes, citing Garcia Ruiz v. Spain, whereas its focus is on whether an Applicant received a fair trial, citing Edwards v. United Kingdom. The Court emphasized that courts are obliged to give reasons for their judgments, although the level of necessary detail may vary, citing Article 6.1 of the ECHR, Ibrahimi, Prokshi and Mërlaku. Importantly, the Court noted, the Applicants argued that a Law on Pension establishing the IPIF had not yet been adopted, an assertion that was confirmed by the MLSW. The Court concluded that the Supreme Court made no attempt to resolve the Applicants’ argument, suggesting that Article 74.3 of the Law on Contract and Torts in conjunction with Article 18 of the 1983 Law on Pension and Invalidity Insurance may have supported the argument. Accordingly, the Court concluded that the Supreme Court had violated Article 31 and Article 6.1 (ECHR) when failing to address the specific, pertinent and important arguments made by the Applicants, citing Ibrahimi, Prokshi and Mërlaku, For the reasons stated, the Court issued a Judgment regarding its holdings on admissibility, the violations of Article 46 in conjunction with Article 1 Protocol 1 to the ECHR, and Article 31 in conjunction with Article 6 of the ECHR. The Judgment also invalidated the Supreme Court judgments, remanded the cases for reconsideration in conformity with the holdings, and retained jurisdiction pending compliance with the Judgment