Notification on the published Judgment KI178/22

The Constitutional Court of the Republic of Kosovo has published the Judgment in case KI178/22, submitted by Ibrahim Tërnava, whereby was requested the constitutional review of the Judgment [REV. no. 59/2021] of 6 May 2022 of the Supreme Court of the Republic of Kosovo, submitted to the Court based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo.

The Court, unanimously, decided that: (i) the Referral is admissible; (ii) there has been a 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; and (iii) to declare invalid Judgment [Rev. no. 59/2021], of the Supreme Court of 6 May 2022, and remand the latter for reconsideration.

The circumstances of the present case are related to the Applicant’s lawsuit for the annulment of the decision of the respondent, namely the Kosovo Railways, whereby the employment relationship of the latter was terminated, which provided for the pending pension, for the employees of the Railways who had reached the age of 60 or had accumulated at least 35 years of employment in 2001, based on the Administrative Instructions of the Department of Transport and Infrastructure no. 2001/3 of 27 February 2001. By the aforementioned lawsuit, the Applicant requested (i) his return to the working place; and (ii) compensation of salaries for the period 28 February 2001 to 1 October 2007. After his case was remanded for reconsideration by the regular courts several times, during three (3) court proceedings, which were remanded for retrial, the Applicant’s lawsuit has been approved in principle since the first decision of the Municipal Court of 12 February 2003, until the third court procedure which was remanded for retrial by the Supreme Court by the decision of 12 April 2012. Subsequently, on 5 January 2016, the Basic Court approved the Applicant’s lawsuit and (i) annulled the aforementioned Decision of the respondent; (ii) obliged the respondent to return the Applicant to the working place; and (iii) to compensate him in the name of personal income the amount of 16,646.37 euro for the pension contribution, as well as other procedural costs. The finding of the Basic Court was upheld by the Court of Appeals, while the Supreme Court modified the Judgments of the Basic Court and the Court of Appeals, rejecting the Applicant’s lawsuit as ungrounded.

The Applicant challenged this decision of the Supreme Court before the Court claiming a violation of his rights 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, as a result of the lack of reasoning of the court decision, including in the context of the lack of consistency of the case law of the regular courts. The Applicant emphasizes the lack of reasoning by the Supreme Court, among others, in the context of (i) the applicability of the Administrative Instruction of the Department of Transport and Infrastructure no. 2001/3; and (ii) the lack of consistency of case law, as a result of the different decision-making by the Supreme Court in four (4) cases with the same factual and legal circumstances.

In assessing the Applicant’s allegations, the Court first elaborated on the general principles of its case law and that of the European Court of Human Rights, as 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, in the context of (i) the reasoned court decision, including related to the lack of consistency of case law; and then (ii) applied the latter to the circumstances of the present case. The Court, applying the criteria and principles elaborated in relation to the reasoned court decision, including those related to the importance of the consistency of the case law, found that unlike all other Judgments and which the Applicant submitted to the Court and which fully correspond to the factual and legal situation of the Judgment rendered in the case of the Applicant, the Supreme Court applied Administrative Instruction no. 2001/3 in the assessment of the legality of the termination of the employment relationship of the employees, namely the Applicant.

In this context, the Court emphasized that it takes into account the possibility that regular courts, when building the case law, may render different decisions, which reflects the development of the case law. However, it emphasized that based on the case law of the Court and that of the European Court of Human Rights, departure from the consistency of the case law must have objective and reasonable justifications and reasoning, which, in the present case, are missing in the Supreme Court’s Judgment, and as a consequence, the latter must be remanded for reconsideration by the Supreme Court.

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/