Decisions published during October 2024

19.11.2024

In October 2024, the Constitutional Court:

• reviewed seventeen (17) cases;
• made decisions for thirteen (13) cases:
• published thirty-four (34) decisions;

During this period, in the website of the Constitutional Court have been published (i) four (4) Judgments; (ii) twenty-six (26) Resolutions on Inadmissibility; and (iii) four (4) Decisions.

Judgments
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I.
1. KI49/23
Applicants: Shaban Dulahu and others
Published on: 1 October 2024
Request for constitutional review of the Judgment [ARJ-UZVP.NR.109/2022] of the Supreme Court of the Republic of Kosovo, of 20 October 2022

The Court reviewed the constitutionality of the Judgment [ARJ-UZVP.NR.109/2022] of the Supreme Court of the Republic of Kosovo, of 20 October 2022. The Judgment first clarifies that the circumstances of the present case are related to the complaint that the Applicant, Shaban Dulahu, had submitted to the Independent Oversight Board for the Civil Service of Kosovo (IOBK), regarding the amendment and supplementation of the Regulation on the internal organization of the central administration of the University of Prishtina of the models of systematization in faculties, as well as the Regulation on personal incomes at the University of Prishtina (hereinafter: the UP). The IOBK rejected the Applicant’s complaint as unfounded. Subsequently, the latter filed a lawsuit against the decision of the IOBK with the Basic Court, which was also rejected as unfounded. The decision of the Basic Court was also upheld by the Court of Appeals, which rejected the complaint of of Applicant Shaban Dulahu as unfounded. Meanwhile, Applicants Shaban Dulahu, Suzana Gusija, Mustafë Zhinipotoku and Tasim Vehapi filed a lawsuit against UP in the name of compensation of salaries for overtime work and the work in commissions, starting from 2006 until 1 October 2012. The statement of the claim of the Applicants was approved by the Basic Court in Prishtina – General Department, obliging the respondent party, UP “Hasan Prishtina”, to pay the compensation of salaries for overtime work and the work in commissions to the Applicants for the above mentioned period of time. The Court of Appeals, acting upon the appeal of the respondent party, namely the UP, quashed the Judgment of the Basic Court and remanded the case to the court of first instance for retrial. The Basic Court – General Department – Civil Division, upon retrial decided that: (i) The Basic Court – Civil Department is declared to have no subject matter jurisdiction to decide in this legal matter; (ii) after the finality of this decision, the case will be transferred the Administrative Matters Department of the Basic Court in Prishtina. The Applicants filed an appeal with the Court of Appeals alleging violations of the provisions of Law No. 03/L-202 on Administrative Conflicts (hereinafter: LAC), proposing that the appeal be approved and the challenged Decision be amended so that the claim is approved in its entirety, or the case is remanded for reconsideration. The Court of Appeals rejected the Applicants’ appeal as ungrounded and upheld the Decision of the Basic Court – Administrative Matters Department. The Court of Appeals assessed that the Basic Court – Administrative Matters Department had rightly dismissed the Applicants’ lawsuit in this legal-administrative matter, because this legal matter is res iudicata with a final judgment. The Supreme Court rejected the Applicants’ request for extraordinary review of the court decision, submitted against the Decision of the Court of Appeals, assessing that for this matter there is a final decision and that in the present situation, this matter is an adjudicated matter (res iudicata) by the lower instance courts. Further, the Court clarifies that in their Referral submitted to the Court, the Applicants claimed that through the contested Judgment of the Supreme Court, their right guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution has been violated as a result of considering their lawsuit for compensation of overtime work as an adjudicated matter res iudicata. The Applicants emphasized that there are differences between the previous lawsuit of Applicant Shaban Dulahu and their statement of the claim regarding the subject matter of the dispute, the parties and their identity, and that the facts of the case are also not the same. In assessing the Applicants’ allegations, the Court initially elaborated on the principles of its case law and that of the European Court of Human Rights regarding the right of access to court, and then applied the same to the circumstances of the present case. First, the Court noted that the Applicants, in their request for extraordinary review of the court decision to the Supreme Court, have emphasized – in substance and explicitly – that their lawsuit concerns compensation of overtime work. While the previous request of Applicant Shaban Dulahu pertained to the amendment of the Regulation on the internal organization of the central administration of UP and the Regulation on personal incomes at UP. In the context of the circumstances of the present case, the Court considered that in the case of the Applicants, we are dealing with a “genuine and serious dispute” between the Applicants, as plaintiffs, and their employer UP as the respondent party, which is claimed to have a legal obligation (monetary obligation) to fulfill towards the Applicants for compensation of overtime work. The Court further assessed whether the Supreme Court, by rejecting the request for extraordinary review of the court decision as unfounded, had denied the Applicants the right of “access to court”, namely the resolution of their case based on merits. The Court considered that in the administrative procedure conducted in respective administrative departments of the Basic Court, the Court of Appeals, and the Supreme Court: (i) the explicit statement of claim of the Applicants for compensation of overtime work from UP was not reviewed; but (ii) instead, they reviewed the previous statement of the claim of Applicant Shaban Dulahu regarding the amendment and supplementation of the Regulation on the internal organization of the central administration of UP and the Regulation on personal incomes at UP, which they considered as a res iudicata. The Court considered that the approach of the regular courts, including the Supreme Court, which did not examine at all the subject matter of the statement of claim regarding compensation for overtime work, is incompatible with the Applicants’ right of access to court, because it prevents them from having a merit-based review of their case, despite the fact that it is a “genuine and serious” dispute. As a result, and based also on the clarifications provided in the published Judgment, the Court held that through the challenged Judgment of the Supreme Court of Kosovo, as a result of the denial of access to court, namely failure to receive a response on merits regarding compensation for overtime work, the Applicants’ right to a fair and impartial trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, has been violated.

You can read the notification regarding the Judgment by clicking here

Meanwhile, you can read the full text of the Judgment and its summary in the two official languages of the Republic of Kosovo and in English, by clicking here

2. KI36/23
Applicant: “DONA-IMPEX” L.L.C.
Published on: 30 October 2024
Request for constitutional review of the Judgment [E. Rev. No. 45/2021] of the Supreme Court of the Republic of Kosovo, of 10 November 2022

The Court reviewed the constitutionality of the Judgment [E. Rev. No. 45/2021] of the Supreme Court of the Republic of Kosovo, of 10 November 2022. The Court initially clarified that the circumstances of the present case relate to a lease contract concluded on 6 April 2005, between the Applicant and the Public Housing Enterprise, for the use of commercial premises, a contractual relation which was extended with the contracts dated 7 March 2006, 27 August 2007, 15 September 2009, and tacitly until 7 March 2014. Subsequently, the Public Housing Enterprise filed a lawsuit with the Municipal Court against the Applicant for payment of debt based on the lease contract of the commercial premises for the contested period, namely 2005–2014. Since the Municipal Court in Prishtina declared itself lacking jurisdiction to decide on the case, the case was transferred to the Basic Court in Prishtina, and the latter approved in its entirety the statement of claim of the Public Housing Enterprise, obliging the Applicant to pay the total debt in the name of lease in the amount of 33,766.01 euros. Following the Applicant’s appeal to the Court of Appeals, the latter approved the appeal and remanded the case for reconsideration, a procedure that again resulted in the approval of the statement of claim of the Public Housing Enterprise. The Decision of the Basic Court in Prishtina was subsequently upheld by the Court of Appeals, while the Supreme Court, although it rejected the revision submitted by the Applicant as unfounded, in the reasoning of its judgment, nevertheless emphasized that the decision of the second instance, namely that of the Court of Appeals, “is involved with essential violations of the provisions of the contested procedure”. The Applicant challenged the decision-making of the Supreme Court before the Court, alleging that his rights guaranteed by Articles 3 [Equality Before the Law], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], and 54 [Judicial Protection of Rights] of the Constitution, as well as Article 6 (Right to a fair trial), Article 13 (Right to an effective remedy), and Article 14 (Prohibition of discrimination) of the European Convention on Human Rights, had been violated, arguing essentially that the Judgment of the Supreme Court was contradictory and unreasoned. In the above-mentioned context and according to the clarifications provided in the Judgment, the Court considered that the Applicant had raised before the Court substantial issues regarding the addressing of his case, specifically the fact that the challenged decision of the Supreme Court had contradictions between (i) the given reasoning, namely the contested paragraph which also results to be in contradiction with the rest of the reasoning and the very enacting clause, according to which, the revision submitted by the Applicant against the aforementioned decision of the Court of Appeals is rejected as unfounded. According to the clarifications provided in the Judgment, the Court, among other things, considered that the part of the reasoning of the challenged Judgment, which results to be in contradiction with the enacting clause itself, does not result to be a mere technical issue, but it rather reflects a lack of a reasoned judicial decision in contradiction with the procedural guarantees related to the right to a fair and impartial trial as stipulated by the Constitution. Consequently, based on all the foregoing, the Court held that the challenged Judgment of the Supreme Court does not meet the standard of a fair and impartial trial guaranteed by 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, due to the lack of a reasoned decision. Finally, the Judgment also clarifies that the Court’s finding relates only to the lack of reasoning of the judicial decision and in no way prejudices the merits of the case during the reconsideration by the Supreme Court.

You can read the notification regarding the Judgment by clicking here

Meanwhile, you can read the full text of the Judgment and its summary in the two official languages of the Republic of Kosovo and in English, by clicking here

3. KI43/24
Applicants: Merita Visoka, Eroll Visoka and Melinda Visoka
Published on: 30 October 2024
Request for constitutional review of the Judgment [Rev. no. 382/2023] of the Supreme Court of the Republic of Kosovo, of 17 October 2023

The Court reviewed the constitutionality of Decision [Rev. no. 382/2023] of the Supreme Court of the Republic of Kosovo, of 17 October 2023. The Judgment first clarifies the circumstances of the present case are related to a dispute concerning the confirmation of property rights over immovable properties, a proceeding in which the Applicants appeared in the capacity of plaintiffs. According to the clarifications given in the Judgment, (i) the property in question was expropriated in 1980, which then was registered as a socially-owned property in the name of the Municipality of Podujeva; (ii) the applicants initiated the legal proceedings, whereby they requested to confirm that they are the owners of the immovable property, and (iii) in the statement of claim they did not specify the value of the dispute in question. The Basic Court and the Court of Appeals rejected the Applicants’ claim in its entirety, while the request for revision submitted to the Supreme Court was rejected on procedural grounds, namely with the reasoning that the value of the object of the dispute does not exceed the threshold of 3,000 euro according to the provisions of paragraph 3 of article 211 (untitled) of the Law on Contested Procedure, in spite of the fact that the same was stipulated in the pre-trial proceedings. The applicants before the Court challenged the aforementioned Decision of the Supreme Court, alleging violation of the rights protected by Article 3 [Equality before the Law] and 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. In essence, the applicants claim that the decision of the Supreme Court infringed their right of “access to court” guaranteed by the aforementioned articles of the Constitution and the European Convention on Human Rights, among others because (i) the courts did not determine the value of the object of the dispute ex officio despite the specific obligation to do so, arising from the Law on Contested Procedure; while (ii) the Supreme Court had rejected the request for revision precisely on the grounds of the value of the dispute, despite the failure of the lower courts to determine such value. In assessing the applicants’ allegations, the Court (i) elaborated on the general principles of the right of access to the court, developed through the case law of the European Court of Human Rights and affirmed through the case law of the Constitutional Court, including here the principles and criteria developed by the European Court of Human Rights regarding the ratione valoris restriction of access to courts of higher instance, and then (ii) continued with the application of these principles and criteria in the circumstances of the present case. The judgment of the Court specifically refers to the principles and criteria established in the case of the European Court of Human Rights Zubac v. Croatia, which the Court also applied in a case before it, namely inKI199/22, applicant P.T.P. “Arta XH”, that pertain to the ratione valoris restriction of access to the Supreme Court. The Judgment, first emphasized that the competence of the Supreme Court, provided by law, before assessing the merits of the revision, to examine the permissibility of the revision in terms of the ratione valoris threshold, based on paragraph 3 of Article 211 of the Law on Contested Procedure, is not contentious. In addition, in the application of the aforementioned criteria to the circumstances of the present case, the Judgment also highlights that, taking into account the very essence of the jurisdiction and competence of the Supreme Court, as the highest judicial authority, to adjudicate on issues of legality of decisions taken by lower instance courts, the ratione valoris threshold is (i) prescribed by law; and (ii) pursues a legitimate aim, which serves to support the rule of law and the proper administration of justice. However, in assessing whether, in the circumstances of the present case, evaluation of the ratione valoris threshold was proportionate to the legitimate aim, the Court considered that the conclusion of the Supreme Court, based on the case law of the European Court of Human Rights, as well as its case law, qualifies as “excessive formalism” in the interpretation and application of the law in the context of access to court, among other things, because it is the obligation of the Supreme Court to interpret and apply the provisions of the Law on Contested Procedure in their entirety and that rejection of revision with the argument that the value of the object of the dispute in the circumstances under which such value has not been determined by the lower courts in spite of obligations arising from the applicable law, has resulted in infringement of the applicants’ right of access to justice, i.e. the right to effectively use the legal remedy of the request for revision according to the provisions of the Law on Contested Procedure. The Court also highlighted the fact that its finding of violation of paragraph 1 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 European Convention on Human Rights, refers only to the specific circumstances of this case, the assessment of which must be made on a case-by-case basis, and refers only to the right of access to the court, i.e. the Supreme Court, and does not in any way prejudice the outcome of the merits of the case.

You can read the notification regarding the Judgment by clicking here

Meanwhile, you can read the full text of the Judgment and its summary in the two official languages of the Republic of Kosovo and in English, by clicking here

4. KI84/22
Applicant: Slavica Đorđević
Published on: 30 October 2024
Request for constitutional review of the Decision [Rev. no. 170/2021] of the Supreme Court of the Republic of Kosovo, of 19 October 2021

The Court reviewed the constitutionality of the Decision [Rev. no. 170/2021] of the Supreme Court of the Republic of Kosovo, of 19 October 2021. The Judgment initially explains that the circumstances of the present case relate to the Applicant’s request to (i) be exempted from paying the court fee in the amount of one thousand (1,000) euros, prescribed for the filed lawsuit through which she sought compensation for damages, within the judicial proceedings; and (ii) she had a proposal for the imposition of a security measure on the respective contested property, regarding which the Constitutional Court had issued Judgment KI86/18 in 2021. The Basic Court and the Court of Appeals had rejected the Applicant’s request for exemption from paying the court fee and procedural expenses as unfounded. Throughout these proceedings, based on Article 96 (untitled) of Law No. 03/L-006 on Contested Procedure, the language of the proceedings was the Applicant’s language, namely Serbian. The Applicant’s request for revision to the Supreme Court was rejected as out of time, a decision which the Applicant challenged before the Court, alleging a violation of her rights deriving from 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, in the context of access to justice. This is because the request for revision to the Supreme Court (i) was submitted within the deadlines specified by the applicable law from the moment when the relevant Decision of the Court of Appeals was received in the Serbian language; but not (ii) within the deadlines specified by the applicable law from the moment when the relevant Decision was received in the Albanian language, which the Applicant had requested to receive in her own language. In assessing the Applicant’s allegations, the Court initially elaborated on the principles of its case law and that of the European Court of Human Rights regarding the right of access to court, and then applied the same to the circumstances of the present case. According to the clarifications given in the Judgment, through Article 96 (no title) of Law No. 03/L-006 on Contested Procedure, the fundamental right of parties and other participants to the proceedings to use their mother tongue or a language they understand during the conduct of proceedings before the court is established, if the party submits such a request. In the circumstances of the present case, upon the party’s request, the entire judicial proceeding was conducted in the Applicant’s chosen language, with the exception of the final decision-making of the Court of Appeals, despite the fact that, based on the aforementioned provision, this court had the obligation to serve the respective decision on the party in the language chosen in the proceedings. According to the clarifications given in the Judgment, the Applicant’s subsequent request to receive the respective decision in her own language resulted in consequences regarding the deadlines related to the use of the legal remedy in the Supreme Court, a fact which the latter failed to take into account in the circumstances of the case, resulting in a violation of her right of access to court. The Court’s Judgment also clarifies that its findings relate solely to the aspect of access to justice in the context of constitutional procedural guarantees and in no way prejudice the Supreme Court’s decision-making on merits during the reconsideration of this case.

You can read the notification regarding the Judgment by clicking here

Meanwhile, you can read the full text of the Judgment and its summary in the two official languages of the Republic of Kosovo and in English, by clicking here

Resolutions on Inadmissibility
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During the reporting period, twenty-six (26) Resolutions on Inadmissibility have been published, of which:

II.
In one (1) Resolution on Inadmissibility published by the Court, the latter held that the Applicant’s Referral is inadmissible based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 48 (Accuracy of the Referral) of the Law, paragraph (1) of Rule 34 (Admissibility Criteria) of the Rules of Procedure, because: it was filed by an unauthorized party:

5. KI102/23
Applicant: Nezir Hoxha
Published on: 10 October 2024
Request for constitutional review of the duration of the proceedings in case [C-III-12- 0730] before the Special Chamber of the Supreme Court.