Constitutional Court

KI51/19, Applicant: Qamil Lupçi, Constitutional review of Judgment ARJ. UZVP. No. 37/2018, of the Supreme Court, of 5 December 2018

KI51/19, Judgment adopted on 28 April 2021, published on 7 June 2021

Keywords: individual referral, right to fair and impartial trial, enforcement of final decision 

In the circumstances of the present case, the Applicant addressed the Appeals Committee of the MLSW and requested to be paid three salaries after retirement and one salary as a jubilee reward as provided in Article 52 and Article 53 of the General Collective Agreement of Kosovo of 18 March 2014. The Applicant alleged that as a claimant he met the conditions for retirement and has over ten years of uninterrupted work experience in the MLSW and that his request is founded. However, the Applicant did not receive any response from the MLSW Appeals Committee regarding his request. The Independent Oversight Board for Civil Service of Kosovo (IOBCSK) had stated that the MLSW Appeals Committee is obliged to review the Applicant’s complaint and issue a meritorious decision in accordance with the civil service legislation. The second time, the MLSW Appeals Committee found that it has no substantive competence to review the Applicant’s request. Meanwhile, the Applicant had filed an administrative claim for the realization of his request, however the regular courts had found that the Applicant’s request should be resolved on merits but had not ordered the MLSW Appeals Committee to issue a meritorious decision regarding the Applicant’s request.

The Court considered the Applicant’s allegations regarding access to the court as one of the guarantees set out in Article 31 of the Constitution in conjunction with Article 6 (1) of the ECHR, supporting this assessment in the case law of the European Court of Human Rights (hereinafter: the ECtHR). The Court elaborated on the general principles deriving from the ECtHR and its case law regarding the right to enforcement of final decision.

The Court held: (i) the enforcement of a final and binding decision, within a reasonable time, is a right guaranteed by Article 31 of the Constitution, in conjunction with Article 6.1 of the ECHR; (ii) the Applicant’s dispute with the MLSW Appeals Committee was not particularly complex, as the IOBCSK had ordered an issuance of a meritorious decision that would address the Applicant’s allegations for the jubilee reward and payment of three (3) accompanying salaries, in accordance with applicable law; (iii) The decision of the IOBCSK has still remained unexecuted by the MLSW Appeals Committee to this day.

The Court concluded that it would be meaningless if the legal system of the Republic of Kosovo allowed a final decision in administrative and enforceable procedure to remain ineffective to the detriment of one party. Therefore, inefficiency of procedures and non-enforcement of decisions produce effects which bring forth situations that are inconsistent with the principle of rule of law (Article 7 of the Constitution) – a principle that all public authorities in Kosovo are obliged to respect.

The Court found that non-enforcement of the Decision of the IOBCSK by the MLSW Appeals Committee has resulted in violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with paragraph 1 of Article 6 [Right to a fair trial] of the ECHR.