Constitutional Court

KI38/23, Applicant: Flamur Dylhasi, constitutional review of Judgment [Rev. no. 205/2022] of 10 October  2022 of the Supreme Court of the Republic of Kosovo  

KI38/23, Judgment of 28 March 2024, published on 25 April 2024

Keywords: individual referral, civil dispute, admissible referral, right of access to justice

The Constitutional Court of the Republic of Kosovo, on 28 March 2024, decided regarding the Referral KI38/23, whereby the constitutional review of Decision  [Rev. no. 205/2022] of 10 October 2022 of the Supreme Court of the Republic of Kosovo was requested. The Court, with eight (8) votes for and one (1) against, held that (i) the referral is admissible; and (ii) that there has been a violation of paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of European Convention on Human Rights.

The circumstances of the present case are related to a dispute regarding the employment relationship. According to the clarifications given in the Judgment, (i) the applicant signed an employment contract with the Kosovo Insurance Bureau (BKS), for a fix period of time, namely from 1 July 2015 to 30 June 2016; (ii) in February 2016, BKS rendered Decision [no. 331/16], which terminated the applicant’s employment contract, for which he was notified on 10 March 2016; and (iii) the applicant, on 21 March 2016, complained to the BKS authorities, but had not received any reply, and as a result, on 4 May 2016, he filed a claim with the Basic Court in Prishtina. The latter approved his claim and annulled the Decision [no. 331/16] of the BKS in entirety, which was also upheld by the Court of Appeals following the appeal of the BKS. However, the Supreme Court, acting upon the request for the revision of the BKS, by the contested Decision, modified the judgments of the lower instances, finding that the claim of the applicant was filed out of the thirty (30) day deadline stipulated by Article 79 (Protection of an Employee by the Court) of Law No. 03/L-212 on Labor.

The applicant before the Constitutional Court contested the aforementioned Decision of the Supreme Court, claiming the violation of his right to a fair and impartial trial guaranteed by Article 31 [Right to Fair and Impartial Trial], in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, in essence, arguing that the violation of the right to access to justice was a result of the Supreme Court’s erroneous calculation of the deadline for submitting a claim to the first instance court.

In assessing the applicant’s allegations, the Court first (i) elaborated on the general principles of its case law and that of the European Court of Human Rights, regarding the principle of access to justice, and (ii) then, applied the latter in the circumstances of the present case, recalling that in principle, the right to a fair and impartial trial does not reflect only the right to initiate  proceedings, but also the right to obtain a resolution of the relevant dispute from a court, insofar as the relevant procedural aspects have been followed based on the applicable laws. In this respect, the Court noted that the applicant submitted the claim to the Basic Court on the thirtieth (30th) calendar day, 4 May 2016, namely after the fifteen (15) day deadline had passed to receive an answer to the complaint filed on 21 March 2016 with the BSK, the term which would legally end on 4 April 2016. From this date, according to the Court’s point of view, the applicant had at his disposal thirty (30) additional days, namely until 4 May 2016, to submit a claim to the Basic Court against the employer’s decision, which he did, in full compliance with the deadlines set by the provisions of Article 78 (Protection of Employees’ Rights), and 79 (Protection of an Employee by the Court) of Law No. 03/L-212 on Labor.

As a result, and as explained in detail in the published Judgment, the Court found that by modifying the judgments of the lower instance courts, which were in favor of the applicant, based on erroneous calculation of the deadlines established in the Law on Labor, the Supreme Court denied him the right to access to justice and effective resolution of the dispute. Therefore, the Court concluded that the Decision [Rev. no. 205/2022] of 10 October 2022 of the Supreme Court of the Republic of Kosovo, is not in compliance with the constitutional rights of the applicant, guaranteed by 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.