Notification on the published Judgment KI 206/21

The Constitutional Court of the Republic of Kosovo has published the Judgment in case KI 206/21, submitted by Ukë Salihi whereby was requested the constitutional review of Judgment [Rev. no. 584/2020] of the Supreme Court of the Republic of Kosovo of 22 April 2021.

According to the case file, it turns out that the Applicant was a civil servant in the Kosovo Police from 2006, while (i) in 2010, first as acting and then through the vacancy, he was elected Deputy Chairman of the Internal Disciplinary Committee, within the Police of Kosovo; and (ii) in 2011, he was transferred to the position of Deputy Director of the Directorate for Professional Standards. The Applicant initiated the proceedings within the Kosovo Police, requesting the corresponding levelling of the salary and then filed a claim with the Basic Court regarding the compensation of the difference in the basic salary and the corresponding allowances based on the classification of positions according to the structure of the Kosovo Police. The Basic Court in Prishtina initially approved the Applicant’s claim as grounded, but following the appeal by the Kosovo Police, (i) the Court of Appeals modified the Judgment of the Basic Court, rejecting the request as ungrounded; whereas (ii) the Supreme Court rejected the request for revision as ungrounded. One of the essential allegations of the Applicant before the Supreme Court was related to the fact that the Court of Appeals did not consider the Applicant’s response to the appeal of Kosovo Police against the Judgment of the Basic Court. The Supreme Court did not review this Applicant’s allegation.

As a result, the Applicant challenged the aforementioned Judgment of the Supreme Court before the Court, claiming the violation of his fundamental rights and freedoms protected by Article 31 [Right to Fair and Impartial Trial], Article 32 [Right to Legal Remedies] and Article 54 [Judicial Protection of Rights] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, essentially, on the grounds of (i) not considering his response to the appeal of the opposing party, namely the Kosovo Police by the Court of Appeals and the Supreme Court, respectively, and, as a consequence, the violation of the principle of equality of arms; as well as (ii) lack of a reasoned court decision.

In reviewing the Applicant’s allegations, the Court, among other things, first (i) elaborated on the general principles regarding the principle of ”equality of arms” and the principle of “adversarial” proceedings guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, including on the relevant case law of the Constitutional Court and the European Court of Human Rights, and then (ii) applied the latter to the circumstances of the present case. In this context, the Court initially clarified that the Applicant submitted the response to the appeal of the Kosovo Police against the relevant decision of the Basic Court within the legal deadline, but the Court of Appeals did not review the relevant response, placing the Applicant in a significantly less favorable position compared to the opposing party, namely the Kosovo Police and making it impossible for him to face the arguments and claims made by the opposing party, contrary to the principles of equality of arms and of adversarial proceedings, respectively. Moreover, the Supreme Court, regarding the Applicant’s allegation that his response to the appeal was not taken into account nor dealt with by the Court of Appeals, did not provide any reasoning.

Based on the above, the Court found that the challenged judgments of the Supreme Court and of the Court of Appeals should be declared invalid and the case be remanded to the Court of Appeals for retrial, since the latter had the obligation to examine the response to the appeal of the Applicant and it is a judicial instance that has “full jurisdiction” regarding the case before it. The Court also emphasized the fact that the finding of violation of paragraph 1 of Article 31 of the Constitution in conjunction with paragraph 1 of Article 6 of the European Convention on Human Rights, in the circumstances of the present case, refers only to procedural guarantees related to the principle of ”equality of arms” and the principle of “adversarial” proceedings, and which in no way relates or prejudices the outcome of the case on the merits in the retrial procedure.

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 has been served to the parties involved in the case, is published on the Court’s website and will be published on the Official Gazette within set deadlines. To receive notifications on the decisions from the Constitutional Court please register at the Court’s website: https://gjk-ks.org/en/