Constitutional Court

KI25/18, Applicant: Vasilije Antović, Constitutional review of Decision  CA. No. 1952/2016 of the Court of Appeals of Kosovo, of 24 April 2017

KI25/18, Judgment of 20 June 2019, published on 11 July 2019

Keywords: Individual referral, right to fair and impartial trial, res judicata, admissible referral, non-violation of constitutional rights

The Applicant was employed in the Municipality of Zubin Potok until 1990 when he was dismissed from work. Following the Applicant’s lawsuit, the Municipal Court in Mitrovica obliged the Municipality of Zubin Potok to reinstate the Applicant to his former working place, with all rights and obligations. As the municipality of Zubin Potok did not pay the salaries for the time he was dismissed from work, the Applicant filed a new lawsuit. On 12 November 1996, the Municipal Court in Mitrovica-Branch in Zubin Potok, by Judgment P. No. 345/96, partially approved the Applicant’s lawsuit and obliged the Municipality of Zubin Potok to pay the Applicant a certain monetary amount on behalf of the compensation for damage due to the lost salaries. This Judgment had become final.

Regarding the enforcement of Judgment P. No. 345/96 of the Municipal Court in Mitrovica, of 12 November 1996, the Applicant from 1997 until the challenged Decision CA. No. 1952/2016 of the Court of Appeals of Kosovo of 25 April 2017, initiated three court proceedings. The first decision on the enforcement of Judgment P. No. 345/96, of 12 November 1996, of the Municipal Court in Mitrovica of 12 November 1996, was Decision No. 82/97 of the Municipal Court in Mitrovica of 29 September 1997, by which the Applicant’s proposal was approved. The second decision regarding the enforcement of the same Judgment was Decision P. No. 329/2003 of the Municipal Court in Mitrovica, of 16 May 2003, which assigned the enforcement of Judgment P. No. 345/96 of 12 November 1996. Thirdly, again as a result of the Applicant’s proposal for enforcement of Judgment P. No. 345/96, of 12 November 1996, the Basic Court in Mitrovica by Decision P. No. 329/2003 of 19 December 2014, repealed Decision P. No. 329/2003 of the Municipal Court in Mitrovica of 16 May 2003, and decided to reject the Applicant’s proposal for enforcement and to complete “the enforcement procedure within the meaning of Article 66, paragraph 3 of the LCP”. This decision was also confirmed by the Court of Appeals by Decision CA. No. 1952/2016 of the Court of Appeals of Kosovo of 25 April 2017.

The Applicant challenges before the Constitutional Court, Decision CA. No. 1952/2016 of the Court of Appeals of Kosovo, of 25 April 2017, alleging violation of his right to fair trial, emphasizing that the current municipality of Zubin Potok “could have executed the execution regardless of the circumstances that occurred during 10-15 over the past years, given in particular the legal inheritance”.

The Court initially reiterated one of the main principles of the right to fair trial, the obligation to enforce judgments that have become res judicata. However, the Court emphasized that the res judicata effects of the decisions, in this case Judgment P. No. 345/96, of 12 November 1996, have ad personam limitations (for a certain person) and in the material scope (the certain case).

As to the present case, the Court noted that by the Decision of the Basic Court, upheld by Decision CA. No. 1952/2016, of 25 April 2017, of the Court of Appeals, Decision P. No. 329/2003 of the Municipal Court in Mitrovica of 16 May 2003 was repealed, and it was decided to complete the enforcement procedure with respect to Judgment P. No. 345/96 of the Municipal Court of Mitrovica, branch in Zubin Potok, of 12 November 1996, against the current municipality of Zubin Potok, after it was found that the enforcement was impossible as the current Municipality of Zubin Potok cannot fulfill the obligations of the Municipality of Zubin Potok before 1999. The Court notes that by the challenged decision, the Court of Appeals only completed the enforcement procedure against the current municipality of Zubin Potok (ad personam) and did not put into question Judgment P. No. 345/96 of 12 November 1996.

Therefore, the Court based on the particular characteristics of the case, the facts presented, the allegations raised by the Applicant, the reasoning of the Court of Appeals, and based on established standards and the principles established in its case law and that of the ECtHR, did not find that by Decision CA. No. 1952/2016 of 25 April 2017, there has been a violation of the Applicant’s right to fair and impartial trial guaranteed by Article 31 of the Constitution, in conjunction with Article 6 of the ECHR.