Constitutional Court

KI54/21, Applicant: Kamber Hoxha, Constitutional review of  Decision Rev. no. 393/2020 of the Supreme Court of Kosovo, of 1 February 2021 

KI54/21, Judgment of 4 November 2021, published on 8 December 2021

Keywords: individual referral, right to fair and impartial trial, right of access to a court

The circumstances of the present case relate to a decision of 2004 of the Employer, namely the Correctional Service, Detention Center in Lipjan, on termination of an employment relationship as a result of disciplinary violations during working hours. The Applicant had initially challenged this decision in the second instance body of the Employer, which 6 (six) months later, had rejected the Applicant’s complaint. The Applicant had initiated proceedings before the regular courts against this decision. The Municipal Court in Lipjan, had decided in favour of the respective Applicant, by obliging the Employer to reinstate the Applicant to his previous job position, and recognize all his rights deriving from this employment relationship.

However, as a result of the Employer’s appeal related to the Applicant’s statement of claim during the period from 2006 to 2015, proceedings were conducted in the District Court, the Independent Oversight Board for the Civil Service, the Court of Appeals and the Supreme Court, in which this statement of claim was examined both from the procedural point of view and that of the merits of the statement of claim. Finally, the case was remanded for reconsideration to the Basic Court, which had again upheld the Applicant’s claim in its entirety. However, and deciding upon the appeal of the Employer, the Court of Appeals, had quashed the Judgment of the Basic Court, by rejecting the Applicant’s statement of claim, this time after finding that the initial claim was filed out of the legal deadline as defined in the Law on Basic Rights from Employment Relationship of the SFRY, of 28 September 1989. Acting upon the request for revision, the Supreme Court upheld the position of the Court of Appeals

The Applicant challenged before the Court the above findings of the Supreme Court including those of the Court of Appeals, by alleging that they were issued in contradiction with the guarantees embodied in his constitutional rights that relate to his right to a legal remedy and judicial protection of rights as provided by Article 31 [Right to Fair and Impartial Trial] and Article 54 [Judicial Protection of Rights] of the Constitution, respectively.

When assessing the Applicant’s allegation, the Court initially assessed that the factual and legal circumstances of the present case incorporate elements of the “right of access to a court”, as an integral part of the right to a fair and impartial trial, guaranteed by Article 31  [Right to Fair and Impartial trial] of the Constitution and Article 6[Right to a fair trial] of the European Convention on Human Rights, and consequently concluded that it would address the Applicant’s allegations from the point of view of these rights.

In this respect, the Court after having elaborated on and applied the principles established through its case law and the case law of the European Court of Human Rights, found that:

(i) a highly formalistic interpretation and finding in respect of the applicability of the provisions of the Law on Basic Rights from Employment Relationship of the SFRY, of 28 September 1989 by the Supreme Court, resulting in the finding that the initial claim of the Applicant was filed out of time, because in essence, he should have not waited for the decision of the second instance, but act on its silence, following a decade of proceedings in which the Applicant’s claim was decided and re-decided on the basis of the merits, is not proportionate to the goal pursued to ensure legal certainty and the proper administration of justice, as one of the basic principles of the rule of law in a democratic society; and

(ii) as a result of this interpretation and the finding of the Supreme Court, the Applicant has been denied his “right of access to a court”, a right which is embodied in the procedural guarantees established through the right to a fair and impartial trial guaranteed by the Constitution and the European Convention on Human Rights.

Consequently and on the basis of the clarifications provided in the published Judgment, the Court found that the challenged Decision [Rev.no.393/2020] of the Supreme Court, of 1 February 2021, was issued contrary to the procedural guarantees guaranteed through 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 consequently, declared the same invalid, by remanding  it for reconsideration in accordance with the findings of the Constitutional Court.