Constitutional Court

KI82/21, Applicant: Municipality of Gjakova, Constitutional review of Judgment UPP-APP. no. 1/2020 of the Supreme Court of Kosovo, of 28 October 2020

KI82/21, Judgment of 9 September 2021, published on 5 October 2021

Keywords: individual referral, principle of equality of arms and adversarial proceedings

It is noted from the case file that the interested party, A.R., was employed in the Municipality of Gjakova in the position of Municipal Public Lawyer, starting from 2008. While exercising this function, the Municipality of Gjakova had received notifications from the Prosecution, regarding the initiation of investigative actions against him as a result of suspicion of committing several criminal offenses. Consequently, the Mayor of Gjakova had suspended the individual A.R., from the respective function. His complaint against the decision on suspension of the Municipality of Gjakova, to the Independent Oversight Board for the Civil Service of Kosovo was rejected. The party, A.R., had initiated proceedings at the regular courts which had returned the case for reconsideration to the Independent Oversight Board and which again upheld the abovementioned decision of the Municipality to suspend A.R. from work. Meanwhile, in the criminal proceedings, the party A.R., was found guilty of the criminal offense of conflict of interest by the Judgment of the Court of Appeals. As a result, the Municipality of Gjakova initiated disciplinary proceedings, as a result of which, the party A.R., was expelled from work. In relation to this decision, proceedings have been conducted at the Basic Court, Court of Appeals and the Supreme Court, respectively, and which ultimately rejected the request of the party A.R. However, the latter filed a request for repetition of the procedure, which was approved on 28 October 2020, by the Judgment of the Supreme Court challenged before the Court by the Municipality of Gjakova in the circumstances of this case.

The Municipality of Gjakova before the Court alleged violation of the right to fair and impartial trial guaranteed by the Constitution and the European Convention on Human Rights, mainly focusing on the violation of the principle of adversarial proceedings and the principle of equality of arms during the proceedings, because according to the allegation, the Supreme Court had decided at the request of the party A.F., without notifying the Municipality of Gjakova, preventing and denying the same the submission of the response.

In assessing the Applicant’s allegations and the relevant response of the party A.R., the Court first elaborated on the general principles of its case law and the case law the European Court of Human Rights, regarding the principle of adversarial proceedings and the principle of equality of arms, and then applied the same in the circumstances of the respective case. The Court reiterated, among others, that the principle of “equality of arms” requires “a fair balance between the parties” where each party must be given a reasonable opportunity to present his/her case under conditions that do not place him/her at a substantial disadvantage vis-à-vis the opponent. In this sense, the Court found that the Supreme Court, deciding on the request for repetition of the procedure submitted by the party A.R., without notifying and giving the other party, namely the Municipality, the opportunity to present counter-arguments regarding such a request, has failed to guarantee the application of the principle of equality of arms and the principle of adversarial proceedings. The Court also noted that beyond the constitutional guarantees, the applicable laws also clearly define the legal obligation of sending the request for repetition of the procedure also to the opposing party and interested individuals, an obligation, which has been avoided in the circumstances of the present case.

Consequently and based on the justifications given in the published Judgment, the Court found that the challenged Judgment of the Court was issued in violation of the procedural guarantees set out in 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, returning the same to the Supreme Court for reconsideration.