Constitutional Court

KI 12/21 Applicant: Violeta Hamidi, constitutional review of Judgment ARJ-UVZP. No. 31/2020 of the Supreme Court of Kosovo of 16 March 2020

KI 12/21, resolution on inadmissibility of 20 May 2021, published on 2 June 2021

Keywords: individual referral, constitutional review of the challenged judgment of the Supreme Court, manifestly ill-founded

The Referral is based on Article 113.7 of the Constitution, Articles 22 and 47 of Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo and Rule 32 of the Rules of Procedure of the Constitutional Court.

In 2015, the Disciplinary Commission for Civil Servants at the Ministry of the Kosovo Security Force (hereinafter: MKSF) determined the Applicant’s disciplinary responsibility for violation of work duties and exceeding the official competences and responsibilities defined in the job description and accordingly imposed a disciplinary measure, removal from office and transfer to another working place with similar duties as well as a ban on promotion for up to five (5) years, this decision was upheld by the MKSF Complaints Commission.

The Applicant filed an appeal against the decision of the MKSF Complaints Commission with the Independent Oversight Board of the Kosovo Civil Service (hereinafter: IOBCSK), which approved the Applicant’s appeal and remanded the case to the MKSF for reconsideration.

Following the IOBCSK recommendations, the MKSF corrected the irregularities and again rejected the Applicant’s appeal, the Applicant again appealed to the IOBCSK, but the Applicant’s appeal was rejected and the MKSF decision was fully upheld.

The Applicant subsequently filed a lawsuit with the Basic Court in Prishtina on the grounds of erroneous determination of factual situation and erroneous application of the law, requesting that the challenged MKSF decision be annulled.

The Basic Court in Prishtina rejected the Applicant’s lawsuit and fully upheld the decision of the MKSF and the IOBCSK. This case went through all stages of the regular proceedings concluding with the Supreme Court, and all supported and upheld the MKSF decision.

The Applicant in essence alleges violation (i) of the rights guaranteed by Article 24 [Equality Before the Law] of the Constitution in conjunction with Article 14 of the ECHR and Article 7 of the UDHR, (ii) the rights guaranteed by Article 46 of the Constitution in conjunction with Article 1 of Protocol No. 1.  of the ECHR, (iii) the rights guaranteed by Article 49 of the Constitution and (iv) the rights guaranteed by Article 21 and Article 22 of the Constitution as well as Article 23 of the UDHR.

The Court finds that the Applicant’s allegations of violation of the rights guaranteed by Articles 21, 22, 24, 46 and 49 of the Constitution, Article 14 and Article 1 of Protocol no. 1 of the ECHR, as well as Articles 7 and 23 of the UDHR, the Court concludes that the Referral should be declared inadmissible in its entirety as manifestly ill-founded, because these Applicant’s allegations qualify as allegations falling into the category of (ii) „clear of apparent absence of violation“ and (iii) “unsubstantiated or unsupported” allegations. Therefore, the latter are manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 39 of the Rules of Procedure.