Constitutional Court

KI17/19 Applicants: Zymer Neziri, Rexhep Doçi, Daut Bislimi, Xheladin Shala, Adem Zejnullahu, Exhlale Dobruna, Mehmet Ahmetaj, Constitutional review of Administrative Instruction No. 09/2015 on categorization of beneficiaries of the contribute paying pensions according to the qualification structure and duration of payment of contributions-pension experience of the Ministry of Labor and Social Welfare 

KI17/19 Resolution on Inadmissibility of 9 July 2020, published on 3 August 2020

Keywords: Individual referral, inadmissible referral, unauthorized party, actio popularis

The Referral was submitted by Zymer Neziri, Rexhep Doçi, Daut Bislimi, Xheladin Shala, Adem Zejnullahu, Exhlale Dobruna and Mehmet Ahmetaj all researchers at the Albanological Institute of Prishtina, who are represented  by Mr. Riza Smaka.

The Applicants challenge Article 4 of Administrative Instruction no. 09/2015 on categorization of beneficiaries of the contribute paying pensions according to the qualification structure and duration of payment of contributions-pension experience of the Ministry of Labor and Social Welfare.

The Applicants’ main allegation is  that the provision of Article 4 of Administrative Instruction no. 09/2015 is “to the disadvantage of beneficiaries of age contribute paying pension, with the level of master and the degree of doctor of science together with the relevant titles, the provision of Article 8 of Law no. 04/L-131 on Pension Schemes was not taken into account, because, unlike and for beneficiaries of contribution-payer pensions with primary and secondary and higher education, for beneficiaries of contribution-payer pensions with a master’s degree and a doctor of science degree, no qualifying categorization has been done, which unjustly violated the right of  the beneficiaries of the age  contribution-payer pensions with the level of Mr. and Dr. of Science, guaranteed by Article 8 of the Law on Pension Schemes”. 

Regarding the Applicants’ request for constitutional review of Article 4 of the Administrative Instruction, in relation to Article 8 of the Law on Pension Schemes Financed by the State, alleging that the Administrative Instruction of MLSW is contrary to Articles 3.2 and 7 of the Constitution, the Court emphasizes its consistent position that natural or legal persons are not authorized parties to seek an abstract assessment of the compatibility of the legislation with the Constitution, or requests of an actio popularis nature. Thus, in its case law, the Court has consistently emphasized that individuals cannot challenge in abstracto normative acts of a general nature.

Therefore, according to the case law of this Court, the Constitution does not provide for a possibility that individuals can complain in abstracto in the Constitutional Court for an unconstitutionality of a Law. The individuals may file constitutional referral regarding actions or failure to act by public authorities only within the scope provided by Articles 113.1 and 113.7 of the Constitution, which requires the Applicants to show that they are: (1) authorized parties, (2) they are directly affected by a concrete act or failure to act by public authorities, and (3) that they have exhausted all legal remedies provided by law (See the case of the Constitutional Court KI102/17 Applicant Meleq Ymeri, cited above, paragraph 20). The only way natural or legal persons can challenge the constitutionality of a law before the Constitutional Court through Article 113.7 of the Constitution and Articles 47 and 49 of the Law is if they prove that their referral is not of an “actio popularis” nature – but that they have been directly or indirectly affected by a “law” in the absence of any act, decision or measure implementing that law. In the circumstances of the present case, as will be explained below, this is not the case.

Therefore, the Applicant’s Referral was declared inadmissible because it has not been submitted by authorized parties, as established in paragraphs 1 and 7 of Article 113 of the Constitution, Article 47 of the Law and Rule 39 (1) (a) of the Rules of Procedure.