Constitutional Court

KI106/20, Applicant: Kosovo Energy Distribution and Supply Company “KEDS” J.S.C., Constitutional review of Judgment Rev. no. 107/2020 of the Supreme Court of Kosovo of 6 April 2020 

KI106/20, Resolution on inadmissibility, of 10 February 2021

Keywords: individual referral, manifestly ill-founded referral, legal certainty, inadmissible referral.

The Applicant before the Court challenges the Judgment [Rev. no. 107/2020] of the Supreme Court of Kosovo of 6 April 2020, alleging that the latter was issued in violation of his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (The right to a fair trial) of the ECHR.

The circumstances of the present case relate to the fact that the employee V.M. was employed by the Applicant, in the position “Head of Projects in Operations”. The employee had established an employment relationship with the Applicant on 15 November 2005 until 7 May 2016. The Applicant one month before the expiration of the fixed-period contract, by Decision no.106, informed the employee V.M. that his contract has ended and that the same will not be extended.

The employee V.M. had filed a lawsuit in the Basic Court in Prizren, against the aforementioned Decision, and the latter by Judgment [C.no.519/16], rejected as unfounded the claim of the employee V.M. arguing that the employee V.M. did not have 10 years of work experience with the Applicant. Following the appeal of the employee V.M., the Court of Appeals rejected the appeal. The employee V.M. then filed for a revision against the judgment of the court of first instance and second instance.

On 6 April 2020, the Supreme Court by Judgment [Rev. no. 107/2020], approved as grounded the revision submitted by the employee and changed the judgments of the Basic Court in Prizren and the Court of Appeals. In this case, the Supreme Court decided to (i) oblige the Applicant to reinstate the employee V.M. to his job, arguing that the General Collective Agreement should also apply to KEDS, because among other things in two articles the employment contract of the Applicant and the employee V.M. is based on the Collective Agreement. According to Article 10 point 5 of the Kosovo Collective Agreement, an employment contract for a limited duration, which is extended clearly or implicitly, for a period of employment period longer than 3 years, will be considered as a contract for unlimited duration.

The Applicant essentially alleges before the Court that the challenged decision is not reasoned and moreover is completely contrary to the previous practice of the Supreme Court of Kosovo on the issue of reinstating employees to work.

The Court, after reviewing the Applicant’s allegations, applying the standards of case law of the European Court of Human Rights, found that the Referral is inadmissible, because the allegations of violation of Article 31 of the Constitution are manifestly ill-founded in “apparent or obvious absence of violation”, and consequently inadmissible, pursuant to paragraph 7 of Article 113 of the Constitution, Article 47 of the Law and Rule 39 (2) of the Rules of Procedure.