- Gjykata Kushtetuese

RrJltTBI.lKA F. Kosovf.s . prm'1i..1lIKA "(}cORO · RFPIIRI.Icor KOSOYO
GJYKATA KUSHTETUESE YCTABIIM CY,U CONSTITUTIONAL COURT Prishtina , on 4 August 2014
Rcf.no.,RK686/ 14
RESOLUTION ON INADMISSIBILITY
In
Case no. KI66/14
Applicants
Ruhan Sadiku, Zymrije Hyseni, Ramadan Palushi, Xhevat Haziri, Mehdi Dibra and Aziz Hashani Constitutional review of the Judgment Rev. no. 210/13 ofthe Supreme Court of the Republic of Kosovo, Of1S December 2013 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KOSOVO
composed of
Enver Hasani, President
Ivan Cukalovic, Deputy-President
Robelt Carolan, Judge
Altay Suroy, Judge
Almiro Rodrigues, Judge
Snezhana Botusharova, Judge, and
Arta Rama-Hajrizi, Judge
Applicants
1. Applicants are: Mr. Ruhan Sadiku from village L1ugaxhi, Municipality of Lipjan;
Ms. Zymrije Hyseni from vi llage Prelez, Municipality of Ferizaj; Mr. Ramadan
Palushi from Ferizaj; Mr. Xhevat Haziri from Ferizaj; Mr. Mehdi Dibra from
Ferizaj and Mr. Aziz Hashani from Ferizaj. The Applicants are represented by
Mr. Halil IIaz i, lawyer.
Challenged decision
2. The Applicants challenge th e J udgment Rev. no. 210/ 13 of th e Su preme Court,
of 18 December 2013, which was se rved on them on 15 J anu ary 2013.
Subject matter
3. The subj ect matter is the constitu tional review ofth e challenged decision, which
allegedly violated the Applicants' constitutional rights, as guaranteed by Article
22 [Direct Applicability of International Agreements and Instruments], Article
31 paragraph 1 and 2 [Right to Fair and Impartial Trial] ; Article 54 [Judicial
Protection of Rights]; Article 6 [Right to fair trial] and Article 13 [Right to
effective remedy] of th e European Convention on Protection of Human Rights
and Funda mental Freedoms (he reinafter, the Convention).
Legal basis
4. The legal basis is: Alticle 113 (7) of th e Constitution and Articles 20 and 47 of
the Law on the Constitutional Court of the Republic of Kosovo, no. 0 3/L-121
(hereinafter, the Law).
Proceedings before the Constitutional Court
5. On 4 April 2014, the Applicants submitted the Referral to the Constitutional
Court of th e Republic of Kosovo (hereinafter, the Court).
6. On 6 May 2014, th e President of the COUIt appointed Judge Almiro Rodrigues
as Judge Ra pporteur and the Review Panel, co mposed of Judges Altay Suroy
(Presiding), Kadri Klyeziu and Arta Rama-Hajrizi.
7. On 16 May 20 14, the Court notified th e Ap plicants on the registration of
Referral and se nt a co py of the Referral to the Supreme Court.
8. On 26 June 201, J udge Kadri KIyeziu notified in writing the Cou rt for his
exclusion from the deliberations for the period June-July 2014 until th e Court
decides regarding th e allegations raised against him.
9. On 30 Jun e 2014, the President of the Court replaced Judge Kadri Kryeziu
Judge Ivan Cukalovic as a member ofth e Review Panel.
10. On 3 July 2014, th e Review Pa nel co nsidered the report of the Judge
RapPOIteur and recommended to the Cou rt the inadmissibility of the Referral.
Summary of facts
11.
On 27 March 2004, the Public Passenger Transpolt Company "Kosovatrans"
(hereinafter, the Kosovatrans) decided to send the Applicants on paid leave of
50% (Decision no. 46).
12.
On 30 December 2005, the Municipal Cou rt in Ferizaj (Judgment C. no.
250 / 0 5) decided to: Il aprove the statement of claim of the Applicants and
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annul as unlawful the decision of Kosovatra ns sending the Applicants to paid
leave with 50% of personal income; II) oblige the Kosovatrans to reinstate the
Applicants to their working places with all rights and obligations from the
employment relationship; III) oblige th e Kosovatrans to pay to th e Applicants
th e compensation of damage for th e loss of personal income for th e period from
01.04.2004 until 30.12.2005, .,,,ith interest rate of 4% to be cou nted from
30.12.2005 until the fin al payment; IV) oblige the Kosovatrans to pay to the
Applicants the damage in the amount of daily allowance for the period from
01.04.2004 until 30.12.2005, with th e same interest rate of 4%, from
30.12.2005 until final payment and V) oblige the Kosovatrans to compensate to
th e Applicants the costs of th e contest ..
13.
The Kosovatrans filed an ap peal with the District Court in Prishtina against th e
Judgment of th e Municipal Court.
14. On 1 November 2006, th e District COUlt (Judgment Ac. no. 168/2006) decided
to: I) reject as ungrounded th e appeal of the Kosovatrans, in paragraph I, II and
in the palt of the paragraph III of th e judgment, where it has to do with the
compensation of damage for the loss of personal income for the period from
01.04.2004 until 30.12.2005; II) uphold paragraph V of th e judgment; III)
quashed paragraph III of the Judgment, in the part that has to do with the
interest rate of 4%, which will be calculated from 30.12.2005, until th e final
payment and IV) quashed the request in paragraph IV.
15. On 5 December 2006, the Applicants filed a request for execution of the
judgment of Municipal COUlt in Ferizaj (C. no. 250/2005 of 30.12.2005).
16. On 20 December 2006, the Municipal COUlt allowed the execution and ordered
the Kosovatrans to reinstate th e Applicants to their working places and pay a
compensation for their unpaid salaries from 2 April 2004 until 30 December
2005·
17. On 19 February 2007, the Kosovo Trust Agency (KTA) filed a request for
suspension of the execution because of the privatization of a part of the
Kosovatrans.
18. On 23 April 2007, th e Municipal Court (Decision E. no. 1348/ 06) rejected the
request of KTA and reiterated the obligation of the Kosovatrans to reinstate the
Applicants to their working places, under the threat of forced execution.
19. On 27 September 2007, the District Court in Prishtina (Judgment Ac" no.
448/ 2007) rejected as ungrounded th e appeal of KTA and upheld th e Decision
of the Municipal COUlt in Ferizaj, E. no. 1348/2006, of 23 April 2007.
20. On 19 November 2007, the Municipal COUlt concluded (E. no. 1348/ 06, Official
Note) th at "the Judgm ent of the Municipal COW"t in Fel"izaj C. no. 250/ 05 of
30.12.2005 is executed in entil'ety, so that the [Applica nts] have been
I'e instated to their working places and entel'ed the debtor's premises"
21. On 7 May 2009, the Municipal COUlt in Ferizaj (Judgment C. no. 676/06)
decided to: I) approve the statement of claim of the Applicants and obligate the
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Kosovatrans to pay to the Applicants the unpaid salaries for the period of
01.01.2006 until 30.04.2009 and II) reject as ungrounded the statement of
claim of the Applicants by which the Kosovatrans is obligated to pay for meal
coupons for th e period of 01.04.2004 until 30.04.2009.
22. On 10 May 2012, the District Court in Prishtina (Judgment Ac. no. 881/2009)
rejected as ungrounded th e appeal of the Applicants and upheld the appeal of
th e Kosovatrans.
23. The Kosovatrans and PAK fil ed ",~th th e Supreme COUlt a revision aga inst the
second instance court judgment, du e to essential violations of th e contested
procedure provisions and erroneous application of the material law.
24.
On 18 December 2012, th e Supreme Court (Judgment Rev. no. 210/2013)
decided to: I) admit th e revision of the Kosovatrans; II) modify the judgments
of Municipal Court in Ferizaj (C.no.676/2006 of 07.05.2009) and of District
Court in Prishtina (Ac.no.881/2009 of 10.05.2012) so that th e statement of
claim of th e Applicants is rejected as ungrounded for the obligation of the
Kosovatrans to compensate th e unpaid salaries to the Applicants for the period
from 01.01.2006 until 30.04.2009; and III) non-review the remaining other
part of the judgments.
Applicant's allegations
25. The Applicants claim that "the Judgm ent of the Supreme Court of Kosovo Rev.
no. 210/ 2013 of 18.12.2013, is partial, unfair and Q1'bitrary, due to these
reasons:
a) Partiality, wifairness and p1"Ocedurai arbitrariness. Despite the fact that
the adjudicated matter-res judicata is afundamental absolute principle and
constitutes p1"Ocedurai negative presumption that excludes the possibility of
retrial for the same adjudicated mattel', and according to the judgment of
the Supreme Court, is considel'ed that the employment relationship was
terminated due to p"ivatization, despite the fact that this objection has been
once rejected by final decision as a "a risen fact" in fact l'evived or renewed
fact, because that fact ceased to exist by final decision E. no. 12 48/2007,
without any legal g1"Ound, constitutes impartiality, arbitrariness and
p1"Ocedurai injustice.
b) The partiality and procedural arbitrariness caused partiality and
material arbitrariness to the detriment of the claimants, by modifying the
judgments ofthe lower instance courts".
26. The Applicants allege that th e Judgment of the Supreme Court violated "A,·ticle
3 1.1 and 2 (Right to Fail' and ImpQ1·tial Trial), Article 22 (Direct Applicability
of International Agl'eements and Instruments), Article 54 (Judicial Protection
ofRights) ofthe Constitution ofthe Republic ofKosovo, Article 6 para . 1 (Right
to a fail' tl'ial) and Article 13 (Right to Effective Remedy) of the EU1"Opean
Convention ofHuman Rights and Fundamental Freedoms".
27.
The Applicants also refer to the Court Judgment in Case KI08/ 09 adopted on 17
December 2010.
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28. The Applicants requ est th e Court "to modify the Judgment oj the SUp,"eme
Court, so that the claimant's revis ion is rejected as ungrounded".
Admissibility ofthe Referral
29. The Court first examines whether th e Applicants have fulfilled the admissibility
requirements la id down in the Constitution, the Law and in th e Rules of
Procedure.
30. In this respect, th e Court refers to Alticle 48 of the Law, which provides:
"In his/ he1' rejerml, the claimant should accumtely cLQI"ify what 1'ights and
jreedoms he/ she claims to have been violated and what concrete act oj
public authority is subject to chal/enge".
31. In addition, Rule 36 (1) c) and 36 (2) d) of the Rules of Procedure, provides:
(1) The Court may only deal with ReJermls if:
[. ..]
c) the Rejerml is not man ifestly ill-founded.
(2) The Court shal/reject a Referml as being manifestly ill-founded when it
is satisfied that:
[. ..J
b) the p1"esented fa cts do not in any way justify the al/egation of a
violation ofthe constitutional"ights;
[. ..]
d) the Applicant does not sufficiently substantiate his claim.
32. The Applicants allege that the Judgment Rev. no. 210/13 of the Supreme Court,
of 18 December 2013, is partial, unfair and arbitrary, because the
abovementioned COUlt modified the decisions of the lower instance courts,
which were final and binding, res judicata.
33. The COUlt notes that the Kosovatrans was entitled to file a revision with th e
Supreme Court against the judgments of the lower instance courts.
34. The Court considers that a decision of th e lower instance court cannot be
considered final and binding, as long as the parties are entitled to file an appeal
with the higher instance COUlt against it, as it happened in th e present case.
35. The Court furth er notes that th e Supreme Court reviewed the matters raised in
th e revision and provided extensive and comprehensive reasons.
36. In fact, the Court notes that the Supreme Court correctly observed the
procedural situation stating:
[. ..]
On 14.08.2006, which mea ns that the second instance [District Court]
judgment Ac.no.168/2006 is rendered [on 1 November 2006] and p1"ior the
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case is sent to reh'ial through Kosovo Trust Agency is made privatization oj
the respondent [Kosovatrans), as a result oj which to a significant number
oj employees, among them th e claimants [Applicants], was terminated the
employment relationship, Kosovo Trust Agency jor this injol'med the
employees - and the respondents and this jact also among the parties is not
contentious, As a consequence oj this derived the legal inability so that the
claimants are returned to their workplaces, despite rendering the first
instance conclusion £,no.1348/2006 oj 19.11.2007, by which the claimants
1'eturn to wOl'k at the l'espondent to execute the first judgment oj this court
C. no. 250/2005 oj 30.12.2005. The claimants have not filed objection
against notices jor termination oj employment relationship oj 14.08.2006
even though they possessed this legal right.
37. More precisely, the Supreme COUlt noted :
Municipal Court in Ferizaj has again adjudicated the matter, which by
judgment oj Dish'ict Co urt in Pl'ishtina Ac.no.168/2006 oj 01.11.2006 is
remanded jor 1'eh'ial to decide only on part which is remanded jor reh'ial,
thus in conjunction with interest 1'Qte and compensation oj meal. However,
by standing behind the statement oj claim on meal, the claimants modified
the statement oj claim by presenting th e modified claim in written on
29,02,2008, so that the entire subject oj review and reconside1'Qtion with
new judgment in the part oj approval oj statement oj claim, was the
compensation oj income jl'Om work jor the pel'iod 2006-2009, as it was
described in a mo1'e detailed manner.
38. The Supreme Court considered:
... by administe1'ed evidence it results that on 14.08.2006, th e privatization
oj respondent was concluded in entirety and in the case file are jound
official injormation oj Kosovo Trust Agency sent to the claimants in which
is stated that the result oj the sale assets oj th e respondent, their
employment was terminated, whereas the requests ojemployees in relation
to salw'ies will be l'eviewed in the liquidation pl'Ocedure.
The allegations in revision(s) that sending the claimants to paid leave with
50% oj income is not interrelated with termination oj their employment due
to privatization oj respondent, are not grounded which presents entirely
different gl'Ound jor termination oj employment relationship. The decision
to terminate the employment relationship to the claimants was not made by
the respondent but by the Kosovo Trust Agency.
39, Finally, the Supreme COUlt found that "the substantive law (material law) was
not applied cO ITectly jor what l'eason the judgments oj lower instance courts
were modified as pel' the enacting clause".
40. The Court considers that the judgment (C. no, 250/05) of the Municipal Court
in Ferizaj dated of 30 December 2005, which allegedly became final and
binding, does not affect th e judgment (C. no. 676/06) of the same court dated of
7 May 2009, which is th e subj ect of the contested revision of the Supreme
Court. These judgments are interrelated, but they are separated and different.
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41. Moreover, the judgment dated of 30 December 2005 relates to the personal
income of the Applica nts fo r the period from 1 April 2004 until 30 December
2005, while the judgment dated of 7 May 2009 relates to the personal income
of th e Applicants for the period from 1 J anuaty 2006 until 30 April 2009.
42. Therefo re, th e Court considers that th e Applicants have not explained and
proved how and why th e Supreme COUlt fi nding that "the substantive law
(material la w) was not applied correctly by the lower instance courts" is
partial, unfair and a rbitraty, and namely violated the res judicata principle.
43. In addition, the Applicants found their reasoni ng on the basis of the Court case
law, namely allegi ng th at th eir case is similar to th e Case KI08/ 09 Gudgment of
17 December 2010).
44. In that respect, the COUlt emphasizes that the factual circumsta nces of Case
KI08/09 are not similar to the Applicants' case. In fact, in Case KI 08/ 09, the
Court found a violation regard ing the non-execution of the first instance court
decision , which became fin al because no appeal was filed against it; in the
Applicants' case, th e unsatisfied parties, as mentioned above, with full
legitimacy fil ed with the Supreme Court a revision against th e lower instance
court judgments.
45. Therefore, th e circumstances of the Applicants' case are significantly different
from th e circumstances of the Case KI08/ 09 and thus cannot be referred by the
Applica nts as su pport of their allegation.
46. Moreover, th e COUlt notes that, in Case KI08/ 09, "the Special Chamber
rejected the appeal by KTA , stating that (...) KTA (...) provided detailed
QI'guments, which exclusively dea lt with the merits of the judgment issued in
January 2002. In the Chambel"s opinion, it was clea r that KTA was making
attempts to appeal that judgment of 2002. Mo reover, the Municipal Court was
competent to decide on the claim-suit of JanuQl'y 2002 and that the l'espective
judgment was never appealed and had become final (res jud icata)". In
addition, th e Special Chamber observed that KTA "was established under
UNMIK Regulation 2002/ 12 of 13 June 2002, meaning that it was established
after th e decision of the Municipal Court of 11 January 2002 became res
j udicata".
47. Furthermore, the COUlt cannot act as a COUlt of fourth instance, rega rd ing the
judgment rendered by the Supreme Court. It is the duty of the regular courts to
interpret a nd apply the pertinent rules of both procedural and substantive law.
The Constitutional Court's task is to ascerta in whether the regu lar courts'
proceedi ngs we re fa ir in th eir entircty, incl ud ing the way in " 'hich evidence
were taken (See case Edwards v. Uniled Kingdo m, No. 13071/ 87, Report of the
~uropean Co mm ission of I Lum an Rights of 10 .July 199 1).
48. In the present case, the COUlt does not consider that th e proceedings in the
Supreme Court were palt ial or in any way unfair or arbitrary (See, mutatis
mutandis, Shub vs. Lithuania, ECHR Decision as to the Admissibility of
Application Nr. 17064/ 06, of 30 J une 2009).
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49. The Constitutional Court futh er considers that the allegation of a violation
based on th e disrespect of a final and binding decision is unfounded, as the
facts and arguments presented by th e Applicants do not logically explain and
reasonably show that the Supreme Court has violated the res judicata principle.
50. Consequ ently, there is no need for furth er detailed review of other alleged
violations, as summarized and included in the Applicants' allegations for
violation of the rights to fair and impartial trial, to judicial protection of rights
and to Effective Remedy.
51.
In sum, the Court concludes that the Applicants' Referral is manifestly il\­
founded, pursuant to Article 48 of the Law and Rule 36 (1) c) of the Rul es of
Procedure.
FOR THESE REASONS
The Constitutional Court, pursuant to Article 113 (7) of the Constitution, Article 48 of
the Law and Rules 36 (1) c); 36 (2) b) and d) ; and 56 (2) of the Rules of Procedure, on
3 July 2 014 , unanimously:
DECIDES
I.
TO DECLARE the Referral inadmissible;
II.
TO NOTIFY this decision to the parties.
III.
TO PUBLISH this Decision in th e Offi cial Gazette, in accordance with
Alticle 2004 of th e Law;
IV.
TO DECLARE this Decision effective immediately.
Almiro Rodrigues Prof. Dr.
8
ver Hasani