Notification on decision in case KI105/24

The Constitutional Court of the Republic of Kosovo rendered its decision with respect to the Referral KI105/24, submitted by Imrije Kadriu, whereby the constitutional review of Judgment [Ac. no. 2125/22] of 23 February 2024 of the Court of Appeals of Kosovo was requested. The Court, decided by 6 (six) votes For and 3 (three) Against: (i) to declare the referral admissible; and (ii) to find that the Judgment [Ac. no. 2125/22] of 23 February 2024 of the Court of Appeals of Kosovo is not in compliance with paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution and paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

The Judgment first clarifies that the circumstances of the present case are related to the Applicant’s claim filed with the Basic Court in Ferizaj against the Municipality of Shtime, in which she demanded the payment of the difference in additional salary for promotion and advancement in career. The Basic Court in Ferizaj partially approved the Applicant’s statement of claim as grounded, approving her statement of claim for compensation of the unpaid difference in salary for licensing – promotion, but rejecting the remaining part of her statement of claim for compensation on behalf of advancement in career, with the reasoning that it failed to establish by any material evidence that the Applicant had advanced in her career, was promoted or qualified during the period from 18 April 2017 to 20 May 2019. Against the Judgment of the Basic Court in Ferizaj, the Applicant submitted an appeal before the Court of Appeals of Kosovo, alleging a violation of the provisions of the Contested Procedure and erroneous determination of the factual and legal situation, against which the Municipality of Shtime subsequently submitted a response to the appeal. The Court of Appeals of Kosovo, through its judgment, rejected as unfounded the Applicant’s appeal, and upheld the judgment of the Basic Court in Ferizaj, establishing that no material evidence has proven the fulfillment of the legal requirement for compensation on behalf of advancement in career, pursuant to item 1.5, paragraph 1 of Article 7 (Licensing) of the Collective Contract, namely that the Applicant has failed to prove that she advanced in her career, was promoted or qualified during the period from 18 April 2017 to 20 May 2019.

The Judgment further clarifies that the Applicant, in her referral submitted to the Court, argued that the contested Judgment of the Court of Appeal of Kosovo has infringed her rights guaranteed by Article 31 [Right to a Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, as a result of (i) the violation of the principle of equality of arms and procedural adversariality, given that the Court of Appeals of Kosovo did not provide her with the response to the appeal filed by the Municipality of Shtime; (ii) the absence of the reasoning in the court decision; and (iii) the violation of the principle of the legal certainty, as a result of the inconsistency of the court decision-making. The Applicant also alleged that the contested Judgment of the Court of Appeals has violated her rights guaranteed by Article 46 [Protection of Property] of the Constitution in conjunction with Article 1 of Protocol No. 1 (Protection of Property) to the European Convention on Human Rights.

When assessing the Applicant’s allegations, the Court first elaborated on the principles of its own case-law and that of the European Court of Human Rights pertaining to the principle of equality of arms and procedural adversariality, and then applied them to the circumstances of the specific case. As for the Applicant’s allegation of violation of the right to a fair and impartial trial, due to the violation of the principle of equality of arms and procedural adversariality, the Court found that the failure to notify the Applicant of the response to the appeal, which the Municipality of Shtime had filed with the Court of Appeal of Kosovo, is in contradiction with the principle of equality of arms and procedural adversariality, given that the Applicant has been placed at a disadvantage with the opposing party. However, the Court clarified that the violation remains of a declaratory nature since, based on paragraph 4 of Article 187 (Untitled) of Law no. 03/L-006 on the Contested Procedure, submissions that arrive at the court after the response to the appeal, are not to be considered unless the court requests supplementary statement. Secondly, with regard to the applicant’s claim of violation of the right to a fair and impartial trial as a result of the lack of reasoning of the court decision and violation of the principle of legal certainty due to the inconsistency in the judicial decision-making of the regular courts, the Court, based on its case-law and that of the European Court of Human Rights, stressed that (i) the regular courts had provided sufficient reasoning for rejecting the applicant’s request for compensation on behalf of advancement in career due to the lack of evidence proving that she advanced in her career or was promoted; and (ii) the Court cannot find the existence of “profound and persistent differences” in the case-law of the Court of Appeal and the Supreme Court, which violate the principle of legal certainty, referring to 2 (two) judgments of the Basic Court. Finally, with regard to the applicant’s claim of a violation of the right to property guaranteed by Article 46 [Protection of Property] of the Constitution, in conjunction with Article 1 (Protection of Property) of Protocol No. 1 to the ECHR, the Court, based on its case-law and that of the European Court of Human Rights, stressed that in order for an “expectation” to be legitimate, it must be more concrete than a “mere hope” and it must be based on a legal provision or a legal act, such as a court decision, and that, in the applicant’s case, the regular courts had found that the applicant had not fulfilled the legal requirement under item 1.5 of paragraph 1 of Article 7 (Licensing) of the Collective Agreement for compensation on behalf of advancement in career.

Consequently, and based on the explanations provided in the published Judgment, the Court found that through the challenged Judgment of the Court of Appeals of Kosovo, as a result of infringing the principle of procedural adversariality, the Applicant’s right to a fair and impartial trial, guaranteed by Article 31 [Right to a Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, has been violated. Meanwhile, concerning the allegations of (i) violation of the right to a fair and impartial trial due to the lack of reasoning of the court decision and inconsistency in judicial decision-making; and (ii) violation of the right to property, the Court found that the same are “unsubstantiated or unjustified”, and consequently manifestly ill-founded on constitutional grounds, as stipulated in paragraph (2) of Rule 34 of the Rules of Procedure. Finally, as per the provisions of the applicable law whereby submissions that arrive at the court after the response to the appeal are not to be considered by the court, unless expressly requested, and the finding that the other allegations of the applicant are unsubstantiated and unjustified, the Court found that the challenged Judgment should not be annulled and that the violation is of a declaratory nature.

This translation is unofficial and serves for informational purposes only.

Note:

This press release was prepared by the Secretariat of the Court for informational purposes only. The full text of the decision will be submitted to the parties involved in the case, will be published on the Court’s website and in the Official Gazette, once the relevant procedures established in the Law on the Constitutional Court and the Rules of Procedure of the Court have been completed. The summary published through this notice may be subject to language and technical corrections in the final draft of the decision. To receive notifications on the decisions from the Constitutional Court please register at the Court’s website: https://gjk-ks.org/en/