Constitutional Court

The applicant, Mr. Esat Kelmendi, filed a Referral pursuant to Article 113.7 of the Constitution of Kosovo challenging the decision of the District Court of Pristina, Ac. no. 647/2011, as being taken in violation of his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] and Article 24 [Equality Before the Law] of the Constitution and as well as Article 6 [Right to a fair trial] and Article 14 [Prohibition of discrimination] of ECHR, since the District Court rejected the Applicant’s proposal for execution of the decision of the Independent Oversight Board. The decision of the IOB was a decision taken by an administrative body which had nothing to do with a monetary claim as is foreseen by the Law on Execution Procedure. Hence, the decision of the IOB was not a title for execution which the District Court should execute, but it was within the competences of the IOB, pursuant to UNMIK Regulation 2008/12 and the Law on IOB, to execute its own decisions.
On the issue of the admissibility of the Referral, the Court held, based upon the plain language of Article 113.7 that the referral was admissible because in the present Referral Mr. Esat Kelmendi contests the constitutionality of Decision Ac. no. 647/2011 of the District Court in Pristina, dated 30 November 2011. Therefore, the Applicant must be considered as an authorized party, entitled to refer this case to the Court and to have exhausted all legal remedies as provided by law, pursuant to Article 113.7 of the Constitution. As to the requirement of Article 49 of the Law that the Applicant must have submitted the Referral within a period of four (4) months, the Court determines from the submissions of the Applicant that the Applicant was served with the above Decision of the District Court on 16 December 2011, while the Applicant submitted the Referral to the Court on 25 January 2012, i.e. within the four months time limit as provided by Article 49 of the Law. Further, the Applicant has set out in detail what rights under the Constitution and the ECHR have allegedly been violated and by what public authority. Hence, the Court also finds that the Applicant has fulfilled the requirement of Article 48 of the Law.
On the merits of the Referral, the Court held that, since the IOB had found a violation of the Applicant’s right to work, which decision had become final and executable, the Applicant had the right to an effective legal remedy, since the Rectorate of the University of Pristina refused to execute the IOB decision. However, as mentioned above, instead of executing the IOB decision, as was their legal duty, both the Rectorate of the University of Pristina and the District Court refused to do so. By failing to enforce the IOB Decision of 18 March 2011, the appropriate authorities have deprived the provisions of Article 31, 32 and 54 of the Constitution and Article 6 and Article 13 of the ECHR of all useful effect. In these circumstances, the Court holds that the right to a fair and effective trial, as guaranteed by the Articles of the Constitution and ECHR, has been violated and that the final and executable decision of IOB of 18 March 2011, must be executed. Furthermore, the Court held that that the District Court did not take into account its previous decisions in order to qualify and adjudicate Applicant’s case pursuant to its decisions based on the principle of the right to equal treatment, as it had previously decided in cases with completely similar circumstances such as the Applicant’s case. In these circumstances, the Court, pursuant to Article 24 [Equality Before the Law] of the Constitution, holds that this discriminatory difference in treatment constitutes a violation of the right to equal treatment before the law. In reaching its decision, the Court also relied on the decisions of the Constitutional Court and the European Court of Human Rights addressing the same or similar issue. The Court declared null and void the decision of the District Court and remanded the decision to the District Court for reconsideration in conformity with the judgment of this Court.