Constitutional Court

KI51/21, Applicant: Skender Hyseni, Constitutional review of Decision Rev.no.229/2020 of the Supreme Court of Kosovo, of 14 January 2021

KI51/21, Resolution on inadmissibility, of 2 June 2021, published on 22 June 2021

Keywords: individual referral, employment relationship, applicable law,

On 14 December 2007, the Applicant, in conformity with UNMIK Regulation No. 2001/27 on Essential Labour Law had signed a fixed term employment contract with the employer [no. 828/25], lasting until 30 September 2008. At the request of the Applicant, on 8 May 2008, by Decision [no. 409] the employer had granted unpaid leave to the Applicant for a period of 3 (three) months from 12 June 2008 to 12 September 2008, with the possibility of extension for another 3 (three) months. On 23 January 2009, the Applicant reported himself for work to the employer, on which occasion he was notified that his employment had been terminated. On 18 March 2009, the Applicant filed a claim with the Municipal Court in Prishtina, requesting that the employer be obliged to reinstate the Applicant to his job position and compensate him for the unpaid salaries.

On 7 December 2015, the Basic Court after the case being remanded for retrial by Judgment [C. no. 2907/13] upheld the Applicant’s claim in its entirety, by obliging the employer to reinstate the Applicant to work, as well as to compensate his salaries and pension contributions for the period from 13 December 2008 to 30 June 2015. However , Court of Appeals by Decision [AC. no. 859/16] upheld the employer’s appeal and quashed the Judgment [C. no. 2907/13] of the Basic Court and dismissed the Applicant’s claim, after having found that the Applicant’s claim was filed out of the legal deadline, since according to Article 83, paragraph 1 of the Law on Basic Rights from Employment Relationship, of 28 September 1989 of the SFRY (hereinafter: the LBRER), it is provided that if an employee who is not satisfied with the final decision of the competent authority or if this authority does not render a decision within 30 (thirty) days from the date of submission of the request,  he has the right to seek the protection of his rights before the competent court within a time limit of 15 (fifteen) days. The Judgment of the Court of Appeals was also upheld by the Supreme Court which had rejected the Applicant’s revision.

The Applicant alleges before the Constitutional Court that his fundamental rights and freedoms guaranteed by Articles 31 [Right to Fair and Impartial Trial] and 49 [Right to Work and Exercise Profession] of the Constitution were violated. In this regard, he alleged that: (i) the Supreme Court and the Court of Appeals have applied the LBRER in a discriminatory manner since the latter was not applicable in the present case, and (ii) the regular courts have made a discriminatory interpretation of the LBRER because even if the LBRER would have been applicable, the Applicant has filed the claim within the legal deadline as he had never received the decision on termination of the employment relationship.

The Constitutional Court, after assessing the Applicant’s allegations, found that the Applicant’s allegations for violation of the rights guaranteed by Articles 31 and 49 of the Constitution must be declared inadmissible as manifestly ill founded because these allegations qualify as allegations falling into the category of “fourth instance” claims and the category of “unsubstantiated or unsupported” claims. Consequently, the Referral as a whole must be declared inadmissible as manifestly ill founded on constitutional basis, as defined in paragraph (2) of Rule 39 of the Rules of Procedure.