Constitutional Court

KI73/19, Applicant: Hamzë Fekaj, Constitutional Review of Judgment AA.no.506 / 2018 of the Court of Appeals, of 12 February 2019

KI73/19 Resolution on Inadmissibility of 8 October 2019, published on 6 November 2019

Keywords: Individual referral, civil procedure, equality before the law, manifestly ill-founded referral, inadmissible referral

The Applicant challenged the constitutionality of the Judgment AA.no.506 / 2018 of the Court of Appeals, of 12 February 2019, which as alleged by him violated his rights protected by Article 3 of the Constitution. The Court noted that the Applicant’s allegations concerned two issues: first, according to the Applicant the regular courts violated his rights guaranteed by Article 3 [Equality before the Law], because they did not properly analyze the evidence and did not correctly apply the provisions of Law No. 04/L-131 on Pension Schemes Financed by the State and secondly, according to the Applicant the provisions of the said law are discriminatory and consequently unconstitutional, because the right to a contributory pension is recognized only to one category of employees, respectively education employees, while other categories (who worked during 1990-1999) are denied that right.

As to the first case, the Court observed that the Applicant’s statement of claim was rejected on the ground that he had not substantiated, with evidence, that he had fulfilled the conditions required for the recognition of the right sought by him under applicable law. In this respect, the Court considered that the decisions of the regular courts did not contain elements of violation of equality before the law, namely elements of unequal treatment, as alleged by the Applicant. Moreover, none of the grounds required by Article 3 of the Constitution support the Applicant’s allegation for a violation of this right because he did not prove that the regular courts treated him unequally in relation to other individuals or categories, who were in the same circumstances or situation as the Applicant.

As regards the second issue, the provisions of Law 04/L-131 are discriminatory, since only “certain” and not “all” categories are recognized their work experience, namely the  age contribution-payer pension entitlement, the Court considered that the Applicant could not raise this claim directly with the Constitutional Court. In fact, this constitutional right to challenge a provision of a law is provided by other constitutional provisions, namely Article 113.8 of the Constitution (through the so-called “incidental constitutional review”).

In conclusion, for the reasons elaborated above, the Court concludes that the Applicant’s Referral:  as to the first allegation that the regular courts did not properly analyze the evidence and did not properly apply the applicable law, thereby violating his rights protected by Article 3 [Equality before the Law] of the Constitution, is manifestly ill-founded on constitutional grounds and therefore must be declared inadmissible pursuant to Rule 39 (2) of the Rules of Procedure; as to the second allegation that the provisions of Law 04/L-131 are discriminatory, the Referral must also be declared inadmissible because the Applicant does not meet the criteria of an authorized party as required by Article 113, paragraph 1 of the Constitution and Rule 39, sub-rule (1), item (a) of the Rules of Procedure.