Constitutional Court

KI103/24, Applicant: Sylejman Zeneli, Constitutional review of the Judgment [Rev.no.485/2022] of the Supreme Court of Kosovo, of 5 January 2023

KI103/24, Judgment, of 11 September 2024, published on 24 September 2024

Keywords: individual referral, accompanying salaries after retirement, right to a fair trial, erroneous or arbitrary application of law

The Constitutional Court of the Republic of Kosovo, on 11 September 2024, decided on Referral KI103/24, whereby the constitutional review of Judgment [Rev.no.485/2022] of the Supreme Court of the Republic of Kosovo, of 5 January 2023, was requested. The Court, unanimously (i) declared the Referral admissible; (ii) held that there had been a violation of paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights; and (iii) declared the Judgment [Rev.no.485/2022] of the Supreme Court, of 5 January 2023, invalid, and remanded the case for retrial in accordance with the Judgment of this Court.

The circumstances of the present case relate to the employment relationship that the Applicant had with Limak Kosovo International Airport “Adem Jashari” J.S.C., in the position of Security Manager, since 2002. According to the case file, in 2012, “Limak Kosova” terminated the Applicant’s employment relationship, alleging that he had failed to fulfill the duties stipulated in his employment contract. After the Applicant challenged this decision, the Basic Court, through Judgment [C.no.412/2015], approved the Applicant’s lawsuit, ordering his reinstatement to his position and compensation for lost salaries. This Judgment was upheld through the Judgment [AC.no.1276/17] of 20 July 2020 of the Court of Appeals, and Judgment [Rev.no.508/2020] of 26 April 2021 of the Supreme Court. As a result, according to the Applicant, the latter was compensated for lost salaries up to his retirement age in 2017.

However, considering that in 2017 the Applicant had reached retirement age, he filed a second lawsuit against “Limak Kosova”, requesting compensation of three (3) accompanying salaries after retirement and two (2) jubilee salaries based on the General Collective Agreement, which was in force from 1 January 2015 to 31 December 2017. The Basic Court, through the Judgment [C.no.312/2019] of 20 January 2020, rejected the Applicant’s lawsuit as ungrounded, on the grounds that (i) he is not entitled to the jubilee reward since at the time he reached the jubilee year in 2012, the General Collective Agreement was not effective; while with regard to (ii) the compensation of accompanying salaries after retirement, the Applicant was not employed by “Limak Kosova”. The Judgment of the Basic Court was upheld by the Judgment [Ac.no.4626/20] of 16 September 2022 of the Court of Appeals, and the contested Judgment [Rev.no.485/2022] of 5 January 2023 of the Supreme Court.

The Applicant contested before the Court the Judgment [Rev.no.485/2022] of 5 January 2023 of the Supreme Court, which was related to the second lawsuit namely the compensation of three (3) accompanying salaries after retirement and two (2) jubilee salaries, claiming violation of his rights guaranteed by Articles 7 [Values], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 54 [Judicial Protection of Rights], and 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution, as well as paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

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 erroneous and arbitrary interpretation and application of the law, according to which the Constitutional Court can assess the interpretations and applications of laws by regular courts only exceptionally and only if those interpretations may have resulted in arbitrary or manifestly unreasonable conclusions; and then (ii) applied these principles to the circumstances of the present case. According to the Judgment, regarding the rejection of the lawsuit of the Applicant related to the request for compensation for three (3) accompanying salaries after retirement, the Court noted that the Supreme Court, by invoking Article 53 (Retirement reimbursement) of the General Collective Agreement, which provides that “When retiring, employee is entitled to a reimbursement equal to three (3) monthly wages, he/she received during the last three (3) months”, concluded that the Applicant was not entitled to this right since he had not effectively performed work and duties for the respondent in the last three months before his retirement and had not received monthly income from the respondent. In this regard, the Court held that Article 53 (Retirement reimbursement) of the General Collective Agreement, in the circumstances of the present case, was interpreted narrowly, ignoring the fact that the Applicant had a final decision for reinstatement, and that as a result, he could not have effectively worked for the employer until the day of his retirement. Consequently, the Court assessed that the interpretation of Article 53 (Retirement reimbursement) of the General Collective Agreement by the Supreme Court, in the circumstances of the present case, resulted in arbitrary conclusions for the Applicant, in violation of the right to a fair trial guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights.

While regarding the right to the payment of two (2) jubilee salaries, based on applicable law and its case law related to such cases, the Court found the Applicant’s allegations for violation of the right to a fair trial, as a result of the non-award of jubilee salaries, to be unfounded, because taking into account that he was employed with “Limak Kosova” in 2002, the jubilee year in his case was reached in 2012, a period when no collective agreement existed in Kosovo.