Decisions published during September 2024

10.10.2024

In September 2024, the Constitutional Court:

• reviewed forty-eight (48) cases;
• decided on forty-ty (42) cases;
• published eighteen (18) decisions;

During this period, in the website of the Constitutional Court have been published (i) four (4) Judgments; (ii) twelve (12) Resolutions on Inadmissibility; and (iii) two (2) Decisions.

Judgments
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I.
1. KI23/24
Applicant: Agim Zogaj
Published on: 5 September 2024
Request for constitutional review of Judgment [AC-I-21-0836-A0001] of the Appellate Panel of the Special Chamber of the Supreme Court of the Republic of Kosovo on Privatization Agency of Kosovo Related Matters, of 26 October 2023

The Court reviewed the constitutionality of the Judgment [AC-I-21-0836-A0001] of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, of 26 October 2023. Initially, the Judgment clarifies that the circumstances of the specific case are related to the applicant’s request submitted to the Liquidation Authority of the Kosovo Privatization Agency, for the compensation of unpaid wages for the period October 2003 – June 2014, as an employee of “Auto Prishtina” SOE. After his request was rejected on the grounds that it was time-barred, the applicant filed a lawsuit with the Special Chamber of the Supreme Court of Kosovo against the Kosovo Privatization Agency and “Auto Prishtina” SOE, through which he requested that his right to compensation be recognized for unpaid wages for the above-mentioned time period. On 15 November 2021, the Special Chamber of the Supreme Court of Kosovo through the Judgment approved the claim of the applicant and also decided not to hold a hearing. The Liquidation Authority of the Kosovo Privatization Agency submitted an appeal to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, against the Judgment of the Special Chamber of the Supreme Court of Kosovo, due to the erroneous assessment of the factual and legal situation, against which subsequently, the applicant filed a response to the appeal. On 26 October 2023, the Appellant Panel of the Special Chamber of the Supreme Court of Kosovo, through the Judgment, evaluated the appeal of the Liquidation Authority of the Kosovo Privatization Agency as well-founded and modified the Judgment of the first instance, thus rejecting the claim of the applicant, on the grounds that according to the provisions of Law No. 04/L-077 on Obligational Relationships, his claim was time-barred. Also, through the aforementioned Judgment, the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo decided not to hold a judicial hearing session. In the following, the Judgment clarifies that the applicant, in his request submitted to the Court, alleged that through the contested Judgment of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, his right guaranteed by Article 31 [Right to a fair and impartial Trial] of the Constitution has been violated, as a result of the erroneous application of the law, which essentially coincides with (i) non-reasoning of the judicial decision; and (ii) failure to hold the hearing. In assessing the applicant’s allegations, the Court first elaborated the principles of its case-law and of the European Court of Human Rights regarding the reasoned judicial decision and the holding of the hearing, and then applied the same to the circumstances of the concrete case. Firstly, regarding the applicant’s claim for violation of the right to a fair and impartial trial, due to the non-reasoning of the court decision, the Court found that through the aforementioned Judgment, the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo had not sufficiently elaborated how the statute of limitation had been reached for the last 3 (three) years before the filing of the lawsuit, namely for the years 2011-2014. In this aspect, the Court found that the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo provided a general conclusion and insufficient reasoning regarding the statute of limitation of the claim of the applicant, respectively the lack of providing any evidence on the termination of the statute of limitation and the invalidity of the list of 12 September 2014, which evidence, in other cases similar to those of the applicants, the Special Chamber of the Supreme Court of Kosovo had accepted as valid. Secondly, regarding the allegation of the applicant for not holding the judicial hearing, the Court, applying the principles which derive from its case-law and that of the European Court for Human Rights, emphasized that, in principle, the holding of the hearing in at least one of the judicial instances is a constitutional obligation. While the exceptions to this principle are possible, the circumstances of the concrete case do not correspond to the possibility of this exception, and consequently, according to the clarifications given in the Judgment, there were no circumstances which could justify the absence of the hearing. As a result, and based on the clarifications given in the published Judgment, the Court found that through the contested Judgment of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, as a result of non-reasoning of the court decision and not holding the hearing, the applicant’s right to a fair and impartial trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 (Right to fair trial) of the European Convention on Human Rights was 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. KI190/22
Applicant: Ramiz Isaku
Published on: 19 September 2024
Request for constitutional review of the Judgment [AC-I-21-0642] of the Appellate Panel of the Special Chamber of the Supreme Court of the Republic of Kosovo, of 31 August 2022

The Court reviewed the constitutionality of the Judgment [AC-I-21-0642] of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, of 31 August 2022. Initially, the Judgment clarifies that the circumstances of the specific case are related to the applicant’s claim filed before the Liquidation Authority of the Kosovo Privatization Agency, for the compensation of unpaid salaries during the period August 2003 – May 2004, as a former employee of SOE “Industria e Duhanit” (Industry of tobacco). The Liquidation Authority of the Kosovo Privatization Agency, through its Decision [GJI. 003-0583/0121] of 10 March 2014, rejected the applicant’s claim, on the grounds of the statutory limitation. The applicant filed a lawsuit in the Special Chamber of the Supreme Court of Kosovo, against the Kosovo Privatization Agency and the SOE “Industria e Duhanit”, requesting thereby recognition of his right to compensation on behalf of the unpaid salaries during the aforementioned period of time. On 6 September 2021, the Specialized Panel of the Special Chamber of the Supreme Court of Kosovo with their Judgment [C-IV-14-2629] rejected the claim of the applicant, whereas on 31 August 31 2022, this decision was confirmed by the Appellate Panel of the Special Chamber of the Court Supreme Court of Kosovo. Further, the applicant filed a motion for the initiation of the request for the protection of legality before the Office of the Chief State Prosecutor, against the decisions of the lower court instances, but such request was rejected on 4 October 2022 by the Office of the Chief State Prosecutor. The judgment clarifies further that, in his referral filed before the Court, the applicant alleged that, the contested Judgment of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo had violated his right guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution due to violation of legal certainty, as a result of the contradictory decisions or divergence in the case law of the Special Chamber of the Supreme Court of Kosovo. The Applicant has basically argued before the Court that the regular courts have failed to render same decisions on the same factual and legal matters, referring to the cases of the former employees of the SOE “Industria e Duhanit”. In support of his allegations, the Applicant submitted to the Court a total of twenty (20) decisions of regular courts, namely ten (10) decisions of the Specialized Panel of the Special Chamber of the Supreme Court of Kosovo and ten (10) decisions of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, in which provisions of the Law on Obligations and Torts of 1978 and Law on United Labor of 1976, related to the lapse of the statutory limitation period, were differently interpreted and applied. All the aforementioned decisions submitted by the Applicant have been extensively elaborated in the Judgment. The Court has reviewed all allegations of the Applicant that pertaining to the violation of the principle of legal certainty, as a result of the contradictory decisions of the Special Chamber of the Supreme Court of Kosovo during the application and interpretation of the legal provisions pertaining to the statutory limitation period pursuant to the provisions of the aforementioned laws. To that end, they first reviewed and then applied in the circumstances of the concrete case (i) the basic principles related to the consistency of the case law, developed through the case law of the European Court for Human Rights, also affirmed through the Court’s own case law; as well as (ii) the relevant criteria based on which the latter assess whether the lack of consistency, namely whether divergence in the case law, constitutes a violation of the principle of the legal certainty, namely a violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution in relation to Article 6 (Right to a fair trial) of the European Convention on Human Rights, including if: (a) divergences in the case law are “profound and far-reaching”; the local law stipulates mechanisms capable of resolving such divergences; and (c) whether such mechanisms have been implemented and to what effect. In this sense, the Court observed that, unlike the case under review, the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo in the aforementioned ten (10) cases, submitted by the Applicant himself and related to the compensation of their salaries during the period 2003-2004 for the former employees of the SOE “Industria e Duhanit”, had found that Article 608 of the Law on United Labor is inapplicable in that case, deeming that the statutory limitation period was interrupted with the notification of the Kosovo Privatization Agency about the compensation claims. With respect to the Applicant’s allegation for violation of the right to fair and impartial trial, due to the divergent case law of the Special Chamber of the Supreme Court of Kosovo, the Court found that in the circumstances of the specific case, (i) there are “profound and far-reaching divergences” in the case law of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo; that (ii) there are mechanisms of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo for harmonization of such case law; and that (iii) such existing mechanism, based on the case files, appears not to have been used. As a result of such finding, the Court emphasized that “profound and far-reaching divergences” in the case law of the Special Chamber of the Supreme Court of Kosovo, related to the non-utilization of the mechanisms stipulated by law and designed to ensure proper consistency within the case law of the highest court in the state, have resulted in violation of the principle of the legal certainty as well as infringement of the Applicant’s right to fair and impartial trial. The Court has also emphasized that this finding is effectively related only to the non-utilization of the mechanisms of the Special Chamber of the Supreme Court of Kosovo in order to ensure the required consistency of the case law in the service of the legal certainty and the principle of the rule of law, as long as it does not prejudice the outcome of the merits of the case that is remanded for reconsideration to the court.

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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. KI103/24
Applicant: Sylejman Zeneli
Published on: 24 September 2024
Request for constitutional review of the Judgment [Rev. No. 485/2022] of the Supreme Court of the Republic of Kosovo, of 5 January 2023

The Court reviewed the constitutionality of the Judgment [Rev. No. 485/2022] of the Supreme Court of the Republic of Kosovo, of 5 January 2023. The circumstances of the present case relate to the employment relationship that the Applicant had with Limak Kosovo International Airport “Adem Jashari” J.S.C., in the position of Security Manager, since 2002. According to the case file, in 2012, “Limak Kosova” terminated the Applicant’s employment relationship, alleging that he had failed to fulfill the duties stipulated in his employment contract. After the Applicant challenged this decision, the Basic Court, through Judgment [C.no.412/2015], approved the Applicant’s lawsuit, ordering his reinstatement to his position and compensation for lost salaries. This Judgment was upheld through the Judgment [AC.no.1276/17] of 20 July 2020 of the Court of Appeals, and Judgment [Rev.no.508/2020] of 26 April 2021 of the Supreme Court. As a result, according to the Applicant, the latter was compensated for lost salaries up to his retirement age in 2017.However, considering that in 2017 the Applicant had reached retirement age, he filed a second lawsuit against “Limak Kosova”, requesting compensation of three (3) accompanying salaries after retirement and two (2) jubilee salaries based on the General Collective Agreement, which was in force from 1 January 2015 to 31 December 2017. The Basic Court, through the Judgment [C.no.312/2019] of 20 January 2020, rejected the Applicant’s lawsuit as ungrounded, on the grounds that (i) he is not entitled to the jubilee reward since at the time he reached the jubilee year in 2012, the General Collective Agreement was not effective; while with regard to (ii) the compensation of accompanying salaries after retirement, the Applicant was not employed by “Limak Kosova”. The Judgment of the Basic Court was upheld by the Judgment [Ac.no.4626/20] of 16 September 2022 of the Court of Appeals, and the contested Judgment [Rev.no.485/2022] of 5 January 2023 of the Supreme Court. The Applicant contested before the Court the Judgment [Rev.no.485/2022] of 5 January 2023 of the Supreme Court, which was related to the second lawsuit namely the compensation of three (3) accompanying salaries after retirement and two (2) jubilee salaries, claiming violation of his rights guaranteed by Articles 7 [Values], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 54 [Judicial Protection of Rights], and 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution, as well as paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights. In assessing the Applicant’s allegations, the Court first (i) elaborated on the general principles of its case law and that of the European Court of Human Rights regarding the erroneous and arbitrary interpretation and application of the law, according to which the Constitutional Court can assess the interpretations and applications of laws by regular courts only exceptionally and only if those interpretations may have resulted in arbitrary or manifestly unreasonable conclusions; and then (ii) applied these principles to the circumstances of the present case. According to the Judgment, regarding the rejection of the lawsuit of the Applicant related to the request for compensation for three (3) accompanying salaries after retirement, the Court noted that the Supreme Court, by invoking Article 53 (Retirement reimbursement) of the General Collective Agreement, which provides that “When retiring, employee is entitled to a reimbursement equal to three (3) monthly wages, he/she received during the last three (3) months”, concluded that the Applicant was not entitled to this right since he had not effectively performed work and duties for the respondent in the last three months before his retirement and had not received monthly income from the respondent. In this regard, the Court held that Article 53 (Retirement reimbursement) of the General Collective Agreement, in the circumstances of the present case, was interpreted narrowly, ignoring the fact that the Applicant had a final decision for reinstatement, and that as a result, he could not have effectively worked for the employer until the day of his retirement. Consequently, the Court assessed that the interpretation of Article 53 (Retirement reimbursement) of the General Collective Agreement by the Supreme Court, in the circumstances of the present case, resulted in arbitrary conclusions for the Applicant, in violation of the right to a fair trial guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights. While regarding the right to the payment of two (2) jubilee salaries, based on applicable law and its case law related to such cases, the Court found the Applicant’s allegations for violation of the right to a fair trial, as a result of the non-award of jubilee salaries, to be unfounded, because taking into account that he was employed with “Limak Kosova” in 2002, the jubilee year in his case was reached in 2012, a period when no collective agreement existed in Kosovo.

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. KI177/22
Applicant: Pashk Bibaj
Published on: 24 September 2024
Request for constitutional review of Judgment [AC-II-21-0058] of the Appellate Panel of the Special Chamber of the Supreme Court of the Republic of Kosovo on Privatization Agency of Kosovo Related Matters, of 23 May 2022

The Court reviewed the constitutionality of the Judgment [AC-II-21-0058] of the Appellate Panel of the Special Chamber of the Supreme Court of the Republic of Kosovo on Privatisation Agency of Kosovo Related Matters, of 23 May 2022. The Judgment initially clarifies that the circumstances of the present case are related to the fact that the Applicant and the Agricultural Cooperative “SH.A. Bec” in 2001 had concluded an immovable properties sale and purchase contract, properties of “SH.A. Bec”, which they registered in the Municipal Court in Peja on 14 March 2002. On 3 March 2005 and 5 July 2006, the Kosovo Trust Agency submitted a request to the Cadastral Office in Gjakova for non-registration of immovable properties in the name of the Applicant. On 28 April 2016, the Privatization Agency of Kosovo filed a lawsuit with the Basic Court in Gjakova, whereby it requested the annulment of the sale and purchase contract and the handover of the immovable properties in the possession of the Privatization Agency of Kosovo, on the grounds that the sale and purchase contract was concluded and certified in violation of the legal provisions in force and contrary to the rules for the sale of assets of socially owned enterprises. The Applicant, in his response to the lawsuit filed by the Privatization Agency of Kosovo, objected the lawsuit in its entirety, claiming that the sale and purchase contract was concluded in accordance with the provisions of the Law on Contracts and Torts. On 2 August 2019, the Basic Court decided to reject the lawsuit of the Privatization Agency of Kosovo as ungrounded, on the grounds that the applicant “is a buyer of immovable property which is the subject of the contract”. The Privatization Agency of Kosovo, on 16 September 2019, submitted an appeal to the Court of Appeals against the judgment of the Basic Court, due to essential violations of the provisions of the contested procedure. On 28 September 2021, the Court of Appeals forwarded the case file to Special Chamber of the Supreme Court, considering that the latter has subject matter jurisdiction to decide on the appeal of the Privatization Agency of Kosovo. From the case file, it turns out that the Court of Appeals, when submitting the case file to the Special Chamber of the Supreme Court, (i) did not include the Applicant’s response to the appeal of the Privatization Agency of Kosovo; and that (ii) the Applicant was not notified of the transfer of his case to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo. As a result of the transfer of the case to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, the latter, after confirming its subject matter jurisdiction related to the claim of the Privatization Agency of Kosovo, approved the appeal of the Privatization Agency of Kosovo as founded and amended the Judgment [C. No. 210/16] of the Basic Court, of 2 August 2019.The Applicant before the Court contested the aforementioned Judgment of the Appellate Panel of the Special Chamber of the Supreme Court, alleging violations of his rights protected by Article 31 [Right to Fair and Impartial Trial] in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, and Article 32 [Right to Legal Remedies] of the Constitution. The Applicant claimed that these rights were violated because, as a result of the judicial authorities’ failure to notify him of the transfer of his case to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, he (i) was unable to present evidence in his favor; and (ii) was also unable to submit an application for oral proceedings before this court instance. In this regard, the Court assessed that his claims are related to the principle of adversarial proceedings in court proceedings and his right to be heard, as an integral part of the right to a fair and impartial trial, guaranteed by paragraph 1 of article 31 of the Constitution, in conjunction with paragraph 1 of article 6 of the European Convention on Human Rights. Consequently, the Court clarified that it focused on the Applicant’s claim to an application for oral proceedings before the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, as provided by the provisions of the Law on the Special Chamber of the Supreme Court of Kosovo.In assessing the Applicant’s claims, the Court first elaborated on the principles of its own case law and that of the European Court of Human Rights concerning the principle of adversarial proceedings and the right to application for oral proceedings, and then applied the same principles to the circumstances of the present case. Based on this, the Court further assessed that: (i) pursuant to Article 69 (Oral Appellate Proceedings) of the applicable Law on the Special Chamber of the Supreme Court of Kosovo, the Applicant has the right to submit to the Appellate Panel an application for oral proceedings, through which he, in the sense and in accordance with the principle of adversarial proceedings, has the right to present his arguments and evidence related to the claim of the Privatization Agency of Kosovo; (ii) however, such an application was impossible for the Applicant to make because he was not notified of the transfer of his case from the Court of Appeals to the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, either by the Court of Appeals or by the Appellate Panel itself. According to the clarifications provided in the published Judgment, the Court held that through the contested Judgment of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, as a result of the denial of the right to submit an application for oral proceedings, the Applicant’s right to fair and impartial trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, was violated. Based on this finding, the Court emphasized that the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo, in the retrial procedure, and in light of the Applicant’s right to be heard, must enable the Applicant to present all his arguments regarding matters of law and fact, including providing him the opportunity to present new evidence.

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Resolutions on Inadmissibility
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II.
In ten (10) Resolutions on Inadmissibility published by the Court, the latter found that the Applicants’ referrals are 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 (2) of Rule 34 (Admissibility Criteria) of the Rules of Procedure, because (i) the allegations of the respective Applicants fall into the category of the fourth instance; (ii) reflect allegations with a “clear absence of a violation”; and/or (iii) the same are “unsubstantiated or unreasoned”.

5. KI67/23
Applicant: Ejup Koci
Published on: 5 September 2024
Request for constitutional review of the Decision [C. No. 84/2022] of the Basic Court in Mitrovica, 23 November 2022