Constitutional Court

KI107/21, Applicant: Ramiz Hoti, Constitutional review of Judgment Rev. No. 138/2020 of the Supreme Court of Kosovo, of 21 January 2021 

KI107/21, Resolution on Inadmissibility, of 21 October 2021, published on 10 November 2021

Keywords: individual referral, equality before the law, unreasoned court decision, right to work and exercise of profession, substantial non-exhaustion of legal remedies, manifestly ill-founded referral, fourth instance allegations, evident absence of a violation

On the basis of the case file it results that the Applicant on 9 September 2012 had submitted his voluntary resignation from the position of Police Officer in the Kosovo Police. In 2016, respectively less than four (4) years following his voluntary resignation, the Applicant had submitted an application for re-employment to the Kosovo Police, which application was based upon the provisions of Administrative Instruction 12/2009, which instruction had been in force at the time of his resignation and provided that the former police officer upon his voluntary resignation may apply for re-employment within four (4) years of his resignation.

In November 2012, a new Administrative Instruction was approved, which had repealed the above-mentioned Instruction 12/2009, and stipulated that the former police officer may apply for re-employment within two (2) years from the moment of submitting a voluntary resignation. On 13 July 2016, Kosovo Police had rejected his application, and thereupon as a result of his complaint to the General Directorate of the Kosovo Police, the latter by  its Decision, of 9 November 2016,  rejected his complaint by ascertaining that according to Administrative Instruction 07/2012, which was in force at the time of application of the Applicant for re-employment, the latter does not fulfil the criteria of the time limit, namely that he has submitted his application out of  the provided time limit which is up to two (2) years following the date of voluntary resignation.

Consequently, the Applicant filed a claim with the Basic Court seeking the (i) annulment of the Decision of the Kosovo Police of 9 November 2016 and (ii) reinstatement to his previous job as a police officer in the Kosovo Police. The Basic Court had approved the Applicant’s claim as grounded and decided to (i) annul the Decision of the Kosovo Police, of 9 November 2016 and (ii) oblige the Kosovo Police to have the Applicant undergo the re-employment procedure within seven (7) days as envisaged by the provisions of Instruction 12/2009. As a result of the appeal filed by the Kosovo Police to the Court of Appeals against the above Judgment of the Basic Court, the Court of Appeals approved the appeal of the Kosovo Police by modifying the Judgment of the Basic Court and deciding to reject the Applicant’s claim as being unfounded.

The Court of Appeals, among other things, had found that in the Applicant’s case the applicable Instruction is the Administrative Instruction 07/2012, which was in force at the time when the Applicant had submitted his application for re-employment to the Kosovo Police. The Applicant filed a request for revision with the Supreme Court against the Decision of the Court of Appeals, due to erroneous application of the substantive law. The Supreme Court through its Judgment, of 26 January 2021, rejected the Applicant’s revision as unfound, by upholding the position and finding provided by the Court of Appeals.

The Applicant alleged before the Constitutional Court  (i) a violation of his right to equality before the law, guaranteed by Article 24 of the Constitution; (i) violation of his right to fair and impartial trial guaranteed by Article 31 of the Constitution, as a consequence  of the lack of a reasoned judicial decision and the non-application of the most favourable law in his case, namely the  Administrative Instruction 12/2009, by the Supreme Court; (iii) violation of his right to work and exercise profession, guaranteed by Article 49 of the Constitution.

In assessing the Applicant’s allegations, the Court first elaborated on the general principles of its case law and the case law of the European Court of Human Rights in relation to  (i) the allegation for a violation of his right to equality before the law, and in in this respect it found that this allegation was raised for the first time before the Constitutional Court, and consequently concluded that this allegation is inadmissible as a result of substantial non-exhaustion of legal remedies as defined by paragraph 7 of Article 113 of the Constitution,  Article 47 of the Law on the Constitutional Court and item (b) of paragraph (1) of the Rules of Procedure of the Court; (ii) the allegation for a violation of Article 31 of the Constitution, as a consequence of non-reasoning of a judicial decision found that this allegation is manifestly ill founded  in the evident absence of a violation, whereas as regards the specific allegation that the Supreme Court has not applied the most favourable law in his case, the Court found that this allegation pertains to the category of  fourth instance claims, and as such it is manifestly ill-founded on constitutional basis, as defined by Rule 39 (2) of the Rules of Procedure; (iii) the allegation for a violation of Article 49 of the Constitution, the Court found that this allegation is manifestly ill-founded on constitutional basis in the evident absence of a violation as established in Rule 39 (2) of the Rules of Procedure of the Court.