Constitutional Court

KI49/23, Applicants: Shaban Dulahu and others, Constitutional review of Judgment [ARJ-UZVP.NR.109/2022] of the Supreme Court, of 20 October 2022

KI49/23, Judgment of 11 September 2024, published on 1 October 2024

Key words: individual referral, admissible referral, violation of the right to a fair and impartial trial, right of access to court

The Constitutional Court of the Republic of Kosovo, on 11 September 2024, decided on the Referral KI49/23, whereby the constitutional review of Judgment [ARJ-UZVP.NR.109/2022] of the Supreme Court of Kosovo, of 20 October 2022, was requested. The Court, unanimously, decided: (i) to declare the Referral admissible; (ii) Judgment [ARJ-UZVP.NR.109/2022] of the Supreme Court of Kosovo, of 20 October 2022, is not in compliance with paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights; and that (iii) Judgment [ARJ-UZVP.NR.109/2022] of the Supreme Court of Kosovo, of 20 October 2022, be declared invalid and remanded for reconsideration in accordance with the Judgment of the Court.

The Judgment first clarifies that the circumstances of the present case are related to the complaint that the Applicant, Shaban Dulahu, had submitted to the Independent Oversight Board for the Civil Service of Kosovo (IOBK), regarding the amendment and supplementation of the Regulation on the internal organization of the central administration of the University of Prishtina, as well as the Regulation on personal incomes at the University of Prishtina. The IOBK rejected the Applicant’s complaint as unfounded, and the decision of the IOBK was confirmed by the Basic Court and the Court of Appeals, respectively. Meanwhile, the Applicant and several others filed a lawsuit against UP in the name of compensation of salaries for overtime work and in commissions, starting from 2006 until 1 October 2012. The statement of the claim was approved by the Basic Court, obliging the respondent party to pay the respective compensation to the Applicants.

However, (i) the Court of Appeals remanded the case for reconsideration; whereas (ii) the Basic Court – General Department – Civil Division, decided to declare itself as having no subject matter jurisdiction, and referred the case to the Administrative Matters Department of the Basic Court. The latter rejected the Applicants’ claim on the basis of the previous lawsuit regarding the amendment and supplementation of the UP Regulations on the internal organization of the central administration and personal incomes, but not for the Applicants’ lawsuit for compensation of overtime work, a decision which was upheld by the Court of Appeals and the Supreme Court, respectively, assessing that for this matter there is a final decision and that in the present situation, this matter is res judicata by the lower instance courts.

Before the Court, the Applicants challenge the Judgment of the Supreme Court, alleging that their right guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution has been violated as a result of considering their lawsuit for compensation of overtime work as an adjudicated matter res judicata. The Applicants emphasized that there are differences between the previous lawsuit regarding the amendment of the UP’s Regulations on the internal organization of the central administration and personal incomes of the Applicant Shaban Dulahu, and their statement of the claim for compensation of overtime work, and that these differences correspond to the subject matter of the dispute, the parties and their identity, and that the facts of the case are also not the same.     

In assessing the allegations of the Applicants, the Court first elaborated the principles of its case law and that of the European Court of Human Rights regarding the right of access to court, and thereafter applied the same to the circumstances of the present case. First, the Court noted that the Applicants, in their request for extraordinary review of the court decision to the Supreme Court, have emphasized that their lawsuit concerns compensation of overtime work, whereas the previous request of the Applicant pertained to the amendment of the Regulation on the internal organization of the central administration of UP and the Regulation on personal incomes at UP.

In the context of the circumstances of the present case, the Court considered that in the case of the Applicants, we are dealing with a “genuine and serious dispute” between the Applicants, as plaintiffs, and their employer UP as the respondent party, which is claimed to have a legal obligation (monetary obligation) to fulfill towards the Applicants for compensation of overtime work. The Court further assessed whether the Supreme Court, by rejecting the request for extraordinary review of the court decision as unfounded, had denied the Applicants the right of “access to court”, namely the resolution of their case based on merits, because, according to the clarifications provided in the Judgment in the administrative procedure conducted in respective administrative departments of the Basic Court, the Court of Appeals, and the Supreme Court: (i) the explicit statement of claim of the Applicants for compensation of overtime work from UP was not reviewed; but (ii) instead, they reviewed the previous statement of the claims regarding the amendment and supplementation of the Regulation on the internal organization of the central administration of UP and the Regulation on personal incomes at UP, which they considered as a res judicata. The Court assessed that the previous lawsuit for amendment and supplementation of the UP Regulations differs and has a different subject matter compared to the lawsuit for compensation of overtime work, and that the approach of the regular courts, including the Supreme Court, which did not examine at all the subject matter of the statement of claim regarding compensation of overtime work, is incompatible with the Applicants’ right of access to court.

As a result, and based also on the clarifications provided in the published Judgment, the Court held that through the challenged Judgment of the Supreme Court of Kosovo, as a result of the denial of access to court, namely failure to receive a response on merits regarding compensation for overtime work, the Applicants’ 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, has been violated.