Judgment

Constitutional review of Notification [KMLC. No. 129/2019] of the State Prosecutor of 13 August 2019, Decision [Ac. No. 3983/2018], of the Court of Appeals of the Republic of Kosovo, of 24 May 2019, and Decision [C. No. 118/2018] of the Basic Court in Gjakova – Branch in Malisheva of 2 February 2018

Case No. KI 175/19

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Summary

KI175/19; Applicant Ismajl Zogaj, Constitutional review of Notification [KMLC. No. 129/2019] of the State Prosecutor of 13 August 2019, Decision [Ac. No. 3983/2018] of the Court of Appeals of the Republic of Kosovo, of 24 May 2019, and  Decision [C. No. 118/2018] of the Basic Court in Gjakova – Branch in Malisheva of 2 February 2018

Keywords: individual referral, right to fair and impartial trial, non-implementation of the enforceable decision.

KI 175/19, Judgment rendered on 28 July 202, published on 13 August 2021

The circumstances of the present case are related to the termination of the Applicant’s employment relationship by the Municipality of Malisheva and the non-enforcement of the IOBCSK Decision, [no. 738], of 18 April 2006 which obliged the Municipality of Malisheva to reinstate the Applicant to his working place. By his lawsuit, the Applicant alleged before the Municipal Court in Malisheva the non-execution of the IOBCSK Decision by the Municipality of Malisheva for his reinstatement to his working place. The Municipal Court in Malisheva by Judgment [C. No. 166/2007] approved in its entirety the statement of claim as grounded which had to do with the payment of lost personal income for the period of time until the employment contract was valid, while rejecting the part of the statement of claim that had to do with the reinstatement to his working place after the expiration of the validity of the employment contract for the Applicant. The Court of Appeals, following the Applicant’s appeal, by Judgment [Ac. No. 2942/2012] rejected the Applicant’s appeal as ungrounded and upheld Judgment [C. No. 166/2007] of the Municipal Court in Malisheva. According to the Court of Appeals, the employment contract of the Applicant had already expired and that it would not be legal and logical to order the Applicant to reinstate to the working place as the contract was ibn force only until 31 March 2006. The Supreme Court by Decision [Rev. No. 6/2014] approved the Applicant’s appeal on the grounds that the IOBCSK Decision is a final administrative decision, and as such should be enforced by the competent court. After remanding the case to the first instance for retrial, the Basic Court in Gjakova – Branch in Malisheva by Decision [Cp. No. 490/2014] obliged the Municipality of Malisheva to compensate the Applicant on behalf of the monthly salary in the amount of 934.78 euro, but rejected the Applicant’s proposal for reinstatement to his working place and compensation of personal income after the expiration of the contract. The Court of Appeals by Decision [Ac. No. 3536/15] assessed that the Decision [Cp. No. 490/2014] of the Basic Court in Gjakova – Branch in Malisheva was rendered with essential violation of the provisions of the contested procedure. The Applicant accurately specified the proposal for enforcement of the IOBCSK Decision to the Basic Court. On 26 May 2017, the Basic Court in Gjakova – Branch in Malisheva by Decision [Cp. No. 157/2016]: (i) approved the Applicant’s proposal; (ii) obliged the Municipality of Malisheva, based on the decision of the IOBCSK, to reinstate the Applicant to his working place; (iii) obliged the Municipality of Malisheva to pay the procedural costs to the Applicant. Following the appeal of the Municipality of Malisheva, the Court of Appeals by Decision [Ac. No. 4085/17] annulled the Decision [Cp. No. 157/2016] of the Basic Court in Gjakova –  Branch in Malisheva and remanded the case to the first instance for re-procedure. The Basic Court in Gjakova – branch in Malisheva, in the re-procedure by Decision [Cp. No. 118/2018] recognized to the Applicant only the right to compensation of financial income and only for the period until he had the contract. Following the Applicant’s appeal, the Court of Appeals by Decision [Ac. No. 3983/2018] upheld the Decision [Cp. No. 118/2018] of the Basic Court of 2 July 2018. Whereas, the Decision of the IOBCSK [no. 738] of 18 April 2006, which determined the reinstatement of the Applicant to his workplace, in its entirety has never been enforced by the Municipality of Malisheva.

The Court noted that the enforcement of the IOBCSK Decision was directly related to the Applicant’s reinstatement to the working place and not only to the issue of financial compensation on behalf of unpaid salaries during the period of dismissal.

Further, relying on the case file in its possession, the Court noted that despite the Applicant’s relentless efforts to enforce the IOBCSK Decision, that decision has never been implemented or quashed. Thus, more than 12 (twelve) years have passed since the issuance of the IOBCSK Decision (18 April 2006) until the final decision of the Court of Appeals [Ac. No. 3983/2018], of 24 May 2019.

Therefore, the Court emphasizes that the implementation of a final and binding decision, within a reasonable time, is a guaranteed right under Article 31 of the Constitution, in conjunction with Article 6.1 of the ECHR.

In the circumstances of the present case, the Court found that the non-enforcement of IOBCSK Decision No. 738 of 18 April 2006, by the Municipality of Malisheva and the regular courts for such a long period of time since the issuance of the IOBCSK Decision, to reinstate the Applicant to his previous position constitutes a violation of Articles 31 of the Constitution in conjunction with Article 6.1 of the ECHR. As a result of this violation, the Applicant was deprived of his right to return to his working place in accordance with the order of the IOBCSK Decision issued in his favor.

Applicant:

Ismajl Zogaj

Type of Referral:

KI – Individual Referral

Type of act:

Judgment

Violation of constitutional rights

Article 31 - Right to Fair and Impartial Trial, Neni 119