Constitutional Court

KI82/22, Applicant: Valon Loxhaj, Constitutional review of Judgment [Rev. no. 103/2022] of the Supreme Court of Kosovo, of 30 March 2022

KI82/22, Judgment of 7 June 2023, published on 29 June 2023

Keywords: individual referral, admissible referral, right to fair and impartial trial, right to a reasoned court decision, res judicata, public hearing, violation of the right to a reasoned court decision

The circumstances of the present case are related to a labor dispute, namely the dismissal of the Applicant from his job as a Credit Officer at ProCredit Bank, on 15 December 2010. As a result, the Applicant filed a lawsuit with the Municipal Court in Prishtina requesting (i) reinstatement to the previous job; and (ii) compensation of unpaid personal income together with other accessory claims. The Municipal Court approved the Applicant’s statement of claim as grounded, ordering (i) the reinstatement of the Applicant to his previous working place; as well as (ii) compensation of unpaid monthly personal income and other accessory claims. Following the appeal of the respondent ProCredit Bank, the Court of Appeals (i) upheld the Judgment of the Municipal Court regarding the reinstatement to his working place; while (ii) it ordered that the matter related to the compensation of the Applicant’s personal income be remanded for retrial. In the retrial procedure, the Basic Court in Prishtina once again approved the statement of claim of the Applicant for the compensation of part of the unpaid personal income for the period 2012 to 2016, while it rejected the claim of the Applicant for the rest of the personal income which were also related to the income he had realized for the period 1 September 2012 to 30 September 2016, as a Board member in the regional company “Ambienti” j.s.c. After the appeals of the Applicant and the respondent, the Court of Appeals upheld the Judgment of the Basic Court. Meanwhile, the Applicant submitted a revision to the Supreme Court requesting (i) the payment of personal income from 15 December 2010 to 31 August 2012; as well as (ii) the difference in personal income regarding the period from 1 September 2012 to 30 September 2016. The Supreme Court rejected the Applicant’s revision as ungrounded.

In the proceedings before the Court, the Applicant challenges the decisions of the regular courts, claiming violation of Articles 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution, in conjunction with articles 6 (Right to a fair trial) and 13 (Right to an effective remedy) of the European Convention on Human Rights, and emphasizing, among other things, that (i) ProCredit Bank dismissed him in an unlawful manner; and that (ii) the regular courts had not awarded him compensation in respect of the period from 15 December 2010 to 31 August 2012 and had reduced his salary payment as a result of income in an unclear and unreasonable manner including the period that he had received income from “Ambienti” j.s.c. during the period from 1 September 2012 to 30 September 2016.

The Court assessed the Applicant’s allegations within the right to a reasoned decision, as 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 and in this context (i) first elaborated the general principles regarding the right to a reasoned decision as guaranteed by the Constitution and the European Convention on Human Rights, and then ( ii) applied the latter in the circumstances of the present case.

In this regard, the Court initially emphasized the fact that the annulment and illegal declaration of the notice of the respondent ProCredit Bank of 15 December 2010 for the termination of the employment relationship of the Applicant and the reinstatement of the latter to the previous working place, are adjudicated cases, namely res judicata, because by the Judgment [Ac. no. 1955/13] of 27 June 2016 of the Court of Appeals, the relevant Judgment of the Municipal Court was upheld, while the case was remanded for retrial only with regard to compensation of the Applicant’s salaries. Whereas, with regard to the right to a reasoned decision, the Court found that in the circumstances of the present case, the regular courts failed to address the essential allegations of the Applicant regarding (i) the compensation of the personal income arising from the employment relationship, the termination of which was proven illegal by final decisions, for the period from 15 December 2010 to 31 August 2012; (ii) the assessment of the necessary compensation of personal income for the period from 31 August 2012 to 30 September 2016 during which period the Applicant also realized income from the regional company “Ambienti” j.s.c. The Court, based on its case law, reiterated that while it is not the obligation of the courts to address and reason each allegation of the respective parties, they, nevertheless, have the constitutional obligation to address and reason the essential allegations of the parties. The Court emphasized that in the circumstances of the present case, this was not the case.

Therefore, based on the clarifications given in the published Judgment, the Court found that (i) the Judgment [Ac. no. 1955/13] of the Court of Appeals of 27 January 2016 regarding the annulment of the notice of 15 December 2010 for the termination of the employment relationship and reinstatement to the previous working place, is res judicata, while (ii) the Judgment [REV. no. 103/2022] of the Supreme Court of 30 March 2022 in conjunction with Judgment [Ac. no. 504/19] of the Court of Appeals and the Judgment [C. no. 1507/16] of the Basic Court in Prishtina of 22 October 2018, were rendered in violation of the procedural guarantees established in 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, due to the lack of a reasoned court decision, and therefore, are declared invalid and the case is remanded to the Basic Court in Prishtina.