Notification on the published Judgment KI190/22

The Constitutional Court of the Republic of Kosovo has published the Judgment in case KI190/22, submitted by Ramiz Isaku whereby was requested the constitutional review of the Judgment [AC-I-21-0642] dated 31 August 2022 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo. The court has, unanimously, decided: (i) to declare the Referral admissible; (ii) to find that the Judgment [AC-I-21-0642] dated 31 August 2022 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo is not in compliance with 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; (iii) to annul the Judgment [AC-I-21-0642] dated 31 August 2022 of the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo and to return it for reconsideration in accordance with the Court’s Judgment; and (v) to order the Appellate Panel of the Special Chamber of the Supreme Court to notify the Court, pursuant to Rule 60 (5) of the Rules of Procedure, by 22 January 2025, about the measures taken in order to implement the Judgment of the Court.

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 sent back for reconsideration to the 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/