Constitutional Court

KI143/21, Applicant: Avdyl Bajgora, constitutional review of Decision Rev. 558/2020 of the Supreme Court, of 22 February 2020

KI143/21, Judgment of 25 November 2021, published on 14 December 2021

Keywords: individual referral, right of access to court, admissible referral, violation of the right to a fair trial 

The main issue in this case relates to the Applicant’s statement of claim, filed against the publicly owned enterprise KEK, for compensation of three jubilee salaries and payment of the difference in salary, for three accompanying pension salaries, based on Article 52, paragraph 1, item 3, and Article 53 of the General Collective Agreement, which was in force from 1 January 2015, until 1 January 2018. The Basic Court of Prishtina (i) approved the respective statement of claim for the part related to the compensation of three jubilee salaries in the amount of 2,739.00 euro, whereas (ii) rejected the statement of claim in the part related to the payment of the difference in salary in the amount of 547.80 euro. The Court of Appeals, acting upon the appeal of KEK, modified the Judgment of the first instance and referring to the relevant provisions related to the statute of limitation, completely rejected the Applicant’s statement of claim. In reviewing the request for revision of the latter, the Supreme Court found that the revision in this case is not allowed, because the value of the dispute did not exceed the amount of 3,000.00, as defined in the relevant provisions of the Law on Contested Procedure.

Challenging the finding of the Supreme Court, the Applicant in the Constitutional Court alleged a violation of the right to fair and impartial trial, as a result of violation of the principle of access to court and also of the right to effective legal remedies and judicial protection of rights, as guaranteed by the Constitution and the European Convention on Human Rights. In essence, the Applicant alleged before the Court that the Supreme Court rejected his request for revision by erroneously assessing the amount of the dispute.

In assessing the Applicant’s allegations, the Court initially (i) elaborated on the general principles of its case law and that of the European Court of Human Rights, on the principle of “access to court”, and (ii) then, applied the latter in the circumstances of the present case. The Court recalls, inter alia, in principle, that the right to fair and impartial trial reflects not only the right to initiate proceedings, but also the right to receive a resolution of the relevant dispute by a court.

The Court, after analyzing the case file, considered that the value of the subject of dispute should take into account the causing of the total damage and that the assessment of the value of the damage for the purposes of the admissibility of the legal remedy cannot be subject to a highly formalistic approach, whereas in the circumstances of the present case, the value of the dispute was significantly above the value on the basis of which the revision is allowed. The Court based on the explanations given in the published Judgment, stated that the rejection of the review of the Applicant’s request on merits by the Supreme Court constitutes an insurmountable procedural flaw, which is contrary to the right of access to court as an integral part of a fair and impartial trial.

Therefore and based on the clarifications given in the published Judgment, the Court found that the challenged Judgment [Rev. no. 558/2020] of 22 February 2020 of the Supreme Court, was rendered contrary to the procedural guarantees, 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, and therefore, declared it invalid, remanding the latter to retrial, in compliance with the findings of the Constitutional Court.