Constitutional Court

Case no. KI130/20, Applicant: Xhevrije Hasani, Constitutional Review of the Judgment UZPV-ARJ.no.21/2020 of the Supreme Court of the Republic of Kosovo, of 6 February 2020 

Keywords: individual referral, challenging not receiving the deficit staff allowance, manifestly ill-founded referral 

The subject matter was the constitutional review of the challenged Judgment, which, according to the Applicant, was rendered in violation of her fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial], 53 [[Interpretation of Human Rights Provisions], 101 [Civil Service], 102 [General Principles of the Judicial System] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights (hereinafter: ECHR).

The circumstances of the present case are related with the application of the Applicant to benefit salary allowance for special categories of deficit professions based on Decision no. 02/39, of 8 October 2008 of the Government of Kosovo. In essence, the Applicant complains that in her case the regular courts violated her rights guaranteed in Articles 31 and 53 of the Constitution, in conjunction with Article 6 of the ECHR, as they did not sufficiently reason the decisions and did not take into account the standards set through the case law of the ECtHR. Consequently, according to the Applicant, she was made unable to be a beneficiary of the deficit staff allowance which was determined by Government Decision no. 02/39, of 8 October 2008. In this regard, the Applicant states that the regular courts, by completely ignoring the issue of the legal basis for the rejection of her claim, have failed to fulfil the essential premise of a fair trial, which is a reasoned court decision.

The Court notes that Article 31 of the Constitution and Article 6 of the ECHR oblige courts to give reasons for their decisions, but this does not imply a detailed response to every claim and argument of the parties. The Court found that the regular courts had fulfilled their constitutional obligation to provide sufficient legal reasoning regarding the Applicant’s claims and allegations. Consequently, the Court considers that the Applicant has benefited from her right to receive reasoned court decisions, in accordance with Article 31 of the Constitution, in conjunction with Article 6 of the ECHR.

Regarding the allegations of the Applicant for violation of the principle of gender equality and violation of Articles 101 and 102 of the Constitution, the Court finds that merely mentioning an article of the Constitution by the Applicant, without clear and adequate reasoning as to how that right has been violated, is not sufficient as argument to raise a reasoned constitutional request and activate the protection system provided by the Constitution and the Constitutional Court. Therefore, the Court considers that the Applicant’s allegations for violation of the above articles of the Constitution, fall into the category of “unsubstantiated or unreasoned” allegations and as such the same are clearly unfounded on constitutional grounds, as defined by paragraph (2) of Rule 39 of the Rules of Procedure.

In view of the above, the Court finds that the Applicant’s allegations constitute unsubstantiated allegations and, as such, are manifestly ill-founded on constitutional grounds, as set out in paragraph (2) of Rule 39 of the Rules of Procedure.

In conclusion, the Court finds that the Referral is manifestly ill-founded on constitutional grounds and is declared inadmissible, in accordance with paragraph 7 of Article 113 of the Constitution and Rule 39 (2) of the Rules of Procedure.