Decisions published in February 2024

08.03.2024

In February 2024, in the Constitutional Court:

• thirteen (13) cases were reviewed;
• decisions were rendered for seventeen (17) cases:
• thirty seven (37) decisions were published;

In this period, on the Constitutional Court’s webpage are published (i) two (2) Judgments; (ii); (ii) thirty one (31) Resolutions on Inadmissibility; and (iii) four (4) Decisions to reject the Referral.

Judgments
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I.
1. KI186/22
Applicants: Malush, Sejdi, Hysni, Skender, Enver, Sherif, Mehdi, Xhevat, Qemajl and Jakup Berisha
Published on: 20 February 2024
Request for constitutional review of Decision [Rev. no. 550/2021], of the Supreme Court of the Republic of Kosovo of 6 June 2022

The Court assessed the constitutionality of Decision [Rev. no. 550/2021] of 6 June 2022 of the Supreme Court of the Republic of Kosovo, in conjunction with the Judgment [Ac. no. 147/19] of 16 September 2021 of the Court of Appeals. The case is related to a property dispute regarding immovable property in the municipality of Suhareka. According to the case file, it follows that on 1 June 2001, the claimant E.B. filed a lawsuit with the Municipal Court in Suhareka for confirmation of the property right of a disputed property, where other Applicants joined the lawsuit in capacity of the co-claimants. On 9 March 2010, the Municipal Court in Suhareka, in the preparatory session, specified the lawsuit in terms of the value of the dispute, increasing the value of the dispute to the amount of twenty thousand (20,000) euro, in conformity with which, the payment of the difference of the tax fee was made by the Applicants. From 2004 to 2018, the case was remanded for retrial several times. Finally, in 2018, the Branch in Suhareka of the Basic Court in Prizren, in the repeated procedure, rendered Judgment [C. no. 224/18], which approved the lawsuit of the Applicants in entirety and confirmed that the latter are cadastral co-owners of the contested property, each to the respective ideal part. Against this Judgment, the Municipality of Suhareka, submitted an appeal to the Court of Appeals, where the latter approved the appeal of the respondent, by modifying the Judgment of the Basic Court and rejecting the Applicants’ lawsuit in its entirety. The latter submitted a request for revision to the Supreme Court, which dismissed the latter as inadmissible, on the grounds that the value of the dispute in the amount of five hundred (500) German Marks, is below the value based on which, according to the applicable law, the meritorious examination of the revision is allowed. The Applicants before the Constitutional Court, alleged a violation of their right to a fair trial, guaranteed by Article 31 [Right to Fair and Impartial Trial] and by Article 32 [Right to Legal Remedies] of the Constitution, because, according to them, (i) based on the request of the Municipal Court in Suhareka on 9 March 2010, the value of the dispute was specified in twenty thousand (20,000) euro, and consequently also paid the court fee difference, which was attached as evidence to the case file, whereas (ii) the Supreme Court did not examine the merits of the revision, but dismissed it as impermissible, on the grounds that the value of the dispute, according to the applicable law, was below the required value to effectively exercise this legal remedy, without properly reviewing the case file. The Court assessed the Applicants’ allegations and, in this context, (i) elaborated on the general principles of its case law and that of the European Court of Human Rights, regarding the principle of “access to the court”; and (ii) thereafter, applied the same to the circumstances of the present case. In this context and according to the detailed elaborations in the Judgment, the Court assessed that the refusal of Supreme Court to examine the merits of the request for revision, without assessing the fact that the value of the respective dispute was modified during the court proceedings, constitutes an insurmountable procedural flaw which contradicts the aforementioned rights of the Constitution and the European Convention on Human Rights, because the conclusions of the Supreme Court, have resulted in the impossibility of the Applicants to have “access to court and justice”, and consequently also in the denial of the right to an effective legal remedy and judicial protection of rights.

You can read the notification regarding the Judgment by clicking here

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

2. KI137/23
Applicant: Naim Berisha
Published on: 20 February 2024
Request for constitutional review of Judgment Rev. no. 451/2022, of 23 November 2022, of the Supreme Court

The Court assessed the constitutionality of Judgment [Rev. no. 451/2022], of 23 November 2022, of the Supreme Court of the Republic of Kosovo. The case concerns a labor dispute, namely the employment relationship of the Applicant, as an actor in the National Theater of Kosovo and established in 2009 by a fixed-term contract signed with the Ministry of Culture, Youth and Sports of the Republic of Kosovo. According to the case file, on 9 November 2012, based on Government’s Regulation no. 5/2011 on the promotion and salaries of cultural creators and performers and professional cultural heritage employees, of 23 June 2011, and since his requests were rejected by the Ministry of Culture, Youth and Sports, by the lawsuit filed with the Basic Court in Prishtina, the Applicant requested (i) the change of the type of contract, namely the transition from a fixed-term contract to a regular employment contract, and ( ii) compensation for material damage, caused as a result of salary discrimination, compared to his colleague actors, namely the actor Sh.K., who, according to the Applicant, was classified with a higher salary coefficient. The Basic Court rejected the lawsuit of the Applicant on the grounds that (i) the legal criteria for changing the type of contract had not been met; and that (ii) there has been no discrimination in the working place in relation to other colleague actors of the National Theater of Kosovo. The Applicant filed an appeal with the Court of Appeals, which rejected it, by upholding the findings of the Basic Court. In the meantime, on 12 May 2015, the Ministry of Culture, Youth and Sports approved the Applicant’s request for transition from the fixed-term contract to a regular employment contract and this issue was not disputable anymore for the Applicant. Consequently, against the Judgment of the Court of Appeals, the Applicant filed a request for revision with the Supreme Court, claiming that the Court of Appeals has failed to assess the discrimination of the claimant’s salary in relation to the actor Sh.K.. The Supreme Court rejected as ungrounded the revision of the Applicant, upholding the findings of the Basic Court and the Court of Appeals. Before the Court, the Applicant alleged violation of his constitutional rights guaranteed by articles 22 [Direct Applicability of International Agreements and Instruments], 23 [Human Dignity], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 49 [Right to Work and Exercise Profession] of the Constitution, as well as articles 6 (Right to a fair trial) and 14 (Prohibition of discrimination) of the European Convention on Human Rights, because according to him, the Supreme Court in its reasoning addressed the issue of transition from a fixed-term contract to an indefinite-term contract, which issue was resolved in 2015 and as such is no longer disputable, but did not address the issue of salary discrimination of the Applicant in relation to other colleague actors, namely the actor SH.K, from 1 July 2011 to 30 April 2015. Assessing the Applicant’s allegation regarding the reasoned decision, the Court (i) first elaborated the general principles related to the right to a reasoned decision, and (ii) applied the same to the circumstances of the present case. As it is clarified in the Judgment, the Court noted that the essence of the Applicant’s allegation required a specific response from the Supreme Court in addressing the issue of whether the latter was discriminated against in salary for the period 1 July 2011 – 30 April 2015 in relation to his colleague actors. In this regard, the Court assessed that the Supreme Court should have addressed the Applicant’s allegation precisely as the latter had specifically raised it in his request for revision. Therefore, according to the detailed elaborations in the Judgment, the Court noted that in the present case there has been a violation of the right to a reasoned decision, as a component of the right to a fair 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, by its judgment obliged the Supreme Court that, in the reconsideration of this case, assesses whether in the case of the Applicant, there has been a discrimination in salary or not, without prejudice to the assessment of the Supreme Court regarding this issue.

You can read the notification regarding the Judgment by clicking here

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

Resolutions on Inadmissibility
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II.
In twenty six (26) 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 “apparent absence of a violation”, and/or (iii) the latter are “unsubstantiated or unreasoned”

3. KI80/23
Applicant: Behgjet Stoliqi
Published on: 6 February 2024
Request for constitutional review of Judgment [AC-I-21-0757-A0001], of the Appellate Panel of the Special Chamber of the Supreme Court of the Republic of Kosovo of 23 March 2023