Constitutional Court

KI173/20, Applicant: Yusuf Timurhan, Constitutional review of Judgment Rev.no.392/19 of the Supreme Court, of 2 June 2020

KI173/20, resolution of 10 November 2021, published on 01.12.2021

Keywords: compensation of salary allowances, suspension from work with pay, right to a fair and impartial trial, judicial protection of rights, statute of limitations, revision 

On the basis of the case file it results that the Applicant, a member of the Kosovo Police, was suspended from work with full pay as a result of an Indictment being filed by the Municipal Prosecution in Prizren due to the criminal offence “Failure to report criminal offences or perpetrators” from Article 304 paragraph 1 of the Criminal Code of Kosovo. During the time he was suspended, the Applicant did not receive the salary allowances. Following the Decision of the Municipal Court in Prizren to terminate the criminal proceedings against the Applicant, the latter was reinstated to his job position and submitted a request for compensation of salary allowances for the time period during which he had been suspended. The Applicant’s request was rejected on the grounds that by Decision of the General Director of the Kosovo Police it was determined that the suspended police officers do not enjoy additional allowances other than the basic salary. The Applicant filed a complaint with the Kosovo Police Complaints and Compensation Commission this decision, a complaint which was rejected on the grounds that it was submitted out of the legal deadline, respectively 4 months late. The Applicant filed a claim with the Basic Court in Prizren against the Kosovo Police, Ministry of Internal Affairs-Government of Kosovo, seeking compensation and payment of all deductions in personal income at the time of suspension, respectively allowances on the basic salary. The Basic Court partially approved the claim of the Applicant, by obliging the respondent to compensate and pay the difference in personal income for the time period of suspension, amounting to the total of 3,303.58 euros, along with the legal interest, as well as procedural costs in the amount of 675.40 euros.  The judgment of the Basic Court was confirmed by the Court of Appeals. However, the Supreme Court, deciding upon the respondent’s revision, accepted the revision as grounded, modified the Judgment of the Court of Appeals and the Basic Court and rejected as unfounded the Applicant’s claim for compensation of the difference in personal income, after having found that the Applicant had requested judicial protection out of the legal deadline provided in Article 87 of the Law on Labour.

As the main allegation raised by the Applicant before the Constitutional Court, was the violation of the right to a fair and impartial trial guaranteed by Article 31 of the Constitution, focusing on erroneous determination of the factual situation and  erroneous interpretation of the law, for the fact that he (i) had not received the request for revision filed by the respondent; (ii) the revision was not permitted in his case; and (iii) the Supreme Court itself had raised the issue of statute barring  without this issue being invoked by the respondent. Further, the Applicant also alleged a violation of Article 54 of the Constitution, by stating that the decision of the Supreme Court had “arbitrarily” violated his individual rights.

In examining the Applicant’s allegations of a violation of his right to a fair and impartial trial, the Court first elaborated on the principles of its case law and of the European Court of Human Rights, with regard to the doctrine of the fourth instance and thereupon applied the same to the circumstances of the concrete case. The Court considered as unfounded the allegation of the Applicant regarding the non-receipt of the request for revision submitted by the respondent, since its receipt was confirmed by the acknowledgment of receipt. Whereas, the Applicant’s allegation that the revision was inadmissible since the value of the dispute according to the claim was 500 Euros, was assessed as unfounded by the Court by referring to Article 212 of the Law on Contested Procedure, given that it found that the value of the dispute was 3,303.58 euros, on which occasion the requirement of the value of dispute to be over 3,000 euros for submitting the revision is met. Further, as regards the allegation that the Supreme Court had decided to reject the Applicant’s claim due to the statute barring, without this issue being raised by the interested party, the Court found that the issue of the legal deadline to seek judicial protection had been previously raised before the courts of the lower instance and that in the present case, as found by the Supreme Court, the judicial protection sought by the Applicant was filed out of the legal deadline. Finally, as regards the Applicant’s allegations of violation of the right to a fair and impartial trial guaranteed by Article 31 of the Constitution, the Court concluded that they pertain to the category of the “fourth instance” claims; consequently, the allegations are manifestly ill-founded. On the other hand, the Applicant’s allegation of a violation of Article 54 of the Constitution, was qualified as unfounded by the Court, due to the fact that it pertains to the category of  “unsubstantiated or unjustified” claims, since the Applicant has not elaborated how the violation of this right has resulted.

Consequently, the Court decided that the Referral must be declared inadmissible as manifestly ill-founded on constitutional basis, in its entirety, as provided in paragraph (2) of Rule 39 of the Rules of Procedure.