REPUBLIKA E KOSOvES - PEnYE.llHKA KOCOBO - REPUBLIC OF KOSOVO

GJYKATA KUSHTETUESEYCTABHH CY21:

CONSTITUTIONAL COURT

Prishtina, on 10 April 2018Ref. No.: RK 1211/18

RESOLUTION ON INADMISSIBILITY

III

Case No. KI76/17

Applicant

, Nysret Fana and others

Constitutional review of Decision Rev. A. No. 6/2017 of the SupremeCourt of Kosovo of 28 March 2017

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KOSOVO

composed of

Arta Rama-Hajrizi, PresidentIvan Cukalovic, Deputy PresidentAltay Suroy, JudgeAlmiro Rodrigues, JudgeSnezhana Botusharova, JudgeBekim Sejdiu, JudgeSelvete Gerxhaliu- Krasniqi, Judge, andGresa Caka-Nimani, Judge.

Applicants

1. The Referral was submitted by Nysret Fana, Besnik Sadriu, Arian Ibrahimi,Isen Dernjani, Haxhi Syla, Haradin Beqiri, Shaban Heta, Fehmi Heta, NjaziSadriu, Labinot Godeni, Milazim Emini, Latif Tahiri, Gezim Gashi, MuminLuma, Sadat Kurtishaj, Bekim Quni, Naser Rexha, Isam Abdullahu, HaxhiBehluli, Mrim Bytyqi, Goran Dimic, Ljubinko Dordevic, Zika Ilic, StojanAliksic, Jovica Popovic, Dobrivoje Antic, Kushtrim Kabashi, Remzi Sejdaj,Artan Arifaj, Elbasan Selimi, Hazir C;o<;aj,Nezir Thaqi, Besim Kabashi, MrimBerisha, Latif Veliu, Vehbi Kastrati, Muhamet Kamberi, Fitim Kaqiu, BesnikKastrati, Driton Sefedini, Ahmet Kurtishaj, Ismet Shala and Visar Gashi, allformer employees of the Food and Veterinary Agency of Kosovo (hereinafter:the Applicants), represented by Basri Jupolli, a lawyer from Prishtina.

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Challenged decision

2. The Applicants challenge Decision Rev. A. No. 6/2017 of the Supreme Court ofKosovo of 28 March 2017, which rejected the request for revision of DecisionAA.No. 397/2016 ofthe Court of Appeals of 30 January 2017, as inadmissible.

Subject matter

3. The subject matter is the constitutional review of the challenged decision,which has allegedly violated the Applicants' rights and freedoms guaranteed byArticle 49 [Right to Work and Exercise Profession] of the Constitution of theRepublic of Kosovo (hereinafter: the Constitution).

Legal basis

4. The Referral is based on Article 113.7of the Constitution, Article 47 of Law No.03/L-121 on the Constitutional Court of the Republic of Kosovo (hereinafter:the Law) and Rule 29 of the Rules of Procedure of the Constitutional Court(hereinafter: the Rules of Procedure).

Proceedings before the Constitutional Court

5. On 3 July 2017, the Applicants submitted a Referral to the Constitutional Courtof the Republic of Kosovo (hereinafter: the Court).

6. On 6 July 2017, the President of the Court appointed Judge Selvete Gerxhaliu-Krasniqi as Judge Rapporteur and the Review Panel composed of Judges:Almiro Rodrigues (Presiding), Snezhana Botusharova and Arta Rama-Hajrizi.

7. On 26 May 2017, the Court notified the Applicants about the registration of theReferral and sent a copy of the Referral to the Supreme Court.

8. On 1 March 2018, the Review Panel considered the report of the JudgeRapporteur and made a recommendation to the Court on the inadmissibility ofthe Referral.

Summary of facts

9. The Applicants were employees of the Food and Veterinary Agency of Kosovo(hereinafter: the FVAK).

10. In 2011, the FVAKterminated their employment relationship.

11. Against this decision, the Applicants filed a complaint with the IndependentOversight Board for the Civil Service of Kosovo (hereinafter: the IOBCSK).

12. The IOBCSKrendered a decision ordering the FVAKto reinstate the Applicantsto the working place, because the procedural requirements for termination ofthe employment contract had not been met.

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13. In 2011, the Applicants signed new employment contracts with FVAK for theperiod from 1April 2011 to 31 December 2011.

14. On 4 October 2011, the FVAK decided to terminate the Applicants'employment relationships on 31 December 2011.

15. The Applicants filed an appeal with the IOBCSK against this decision.

16. On 31 January 2012, the IOBCSK rendered Decision [02/288/2011] rejectingthe Applicants' complaint as unfounded, with the reasoning: ,,[...] theappellants did not exhaust all the internal legal remedies because they did notfile any complaint with the employment authority, meaning the appellantsdid not submit complaint to the Commission for Resolution of Disputes andComplaints of their employment authority, therefore this is not in accordancewith the Law on IOBCSK."

17. In 2012, the Applicants filed a claim with the Basic Court in Prishtina-Department of Administrative Matters (hereinafter: the Basic Court) againstthe Decision of the IOBCSK, requesting the annulment of the IOBCSK Decision[No. 02/288/2011], reinstatement to their working places and payment ofunpaid personal income.

18. On 15 January 2014, the Basic Court rendered Judgment [A. No. 477/2012]which approved the Applicants' statement of claim and annulled the IOBCSKDecision and remanded the case to IOBCSK for retrial. The reasoning of thedecision states:

"The court obliged the respondent authority to act in the repeatedproceedings pursuant to the remarks provided in this Judgment and aftercorrecting the mentioned flaws, to issue a fair Decision that is based onlaw."

19. On 6 February 2014, the Judgment of the Basic Court [A. No. 477/2012] wassubmitted to the IOBCSK.

20. On 4 March 2014, the IOBCSK rendered a new Decision No. 02/30/2014,which rejected the Applicant's appeal as ungrounded. In the reasoning of theIOBCSK decision, inter alia, is stated:

"...Based on the Law No. 03/L-016 on Food and the aforementionedRegulation, the FVA has adopted its internal act - Regulation No. 01/2011on internal organization and job classification in FVA. By this Regulation,the positions of the disinfection technicians are not foreseen, disinfectionpoints are closed according to the request of the Integrated BorderManagement Committee in accordance with the European practices andstandards and in accordance with the decision of the Government of theRepublic of Kosovo No. 08/35 of 01.09.2011 ...[...]The Food and Veterinary Agency issued a notice No. 4812/2 of 04.10.2011,notifying all disinfection technicians that as of 31 December 2011, the termof contract and employment relationship shall expire and they will not be

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renewed. On 30.12.2011, the FVA rendered decisions to terminate theemployment relationship for disinfection technicians for each appellantseparately ... "

21. On 21 August 2014, the Applicants submitted to the Basic Court a proposal forthe execution of the Judgment of the Basic Court of 15 January 2014. In anexecution proposal they requested "to oblige the debtor to pay to the creditorsthe personal incomefor the period they were dismissedfrom work. "

22. On 21 January 2015, the Basic Court rendered Decision [E. No. 611/2014] bywhich the Applicants' request for enforcement was rejected as ungrounded.The reasoning of the decision reads:

"[ ...J proposal of the creditors for allowing the execution shall be rejectedas ungrounded due to the reason that it cannot be confirmed what shouldbe executed by the execution document, what is the obligation of thedebtor, it is not known the working place where they should be reinstatedandfor which period should the payment be made ...".

23. On 31 October 2016, the Applicants submitted a request to the Basic Courtrequesting the correction ofthe Judgment ofthe Basic Court [A. No. 477/2012]of 15 January 2014.

24. On 1 November 2016, the Basic Court rendered a decision which rejected therequest for correction of the Judgment [A. No. 477/2012] of the Basic Court, asinadmissible on the grounds that "the Applicant's request is inadmissible duenon specification of what was requested to be corrected in a challengeddecision ..."

25. The Applicants filed an appeal with the Court of Appeals against the Decisionof the Basic Court [E. No. 611/2014] on the grounds of essential violation ofArticle 165.1 of the Law on Contested Procedure (hereinafter: LCP).

26. On 30 January 2017, the Court of Appeals rendered Decision [AA. No.397/2016], which rejected the Applicants' appeal as ungrounded. Thereasoning of the decision reads:

"... the allegations in the reasoning of the Applicants' appeal that theJudgment of the first instance court is not executable, and that the firstinstance court has erroneously interpreted Article 165.1 of the LCP, etc.,are ungrounded because according to the content of the challengedJudgment there is nothing to correct because the Judgment in question islawful and fair, it was rendered in accordance with the legal provisions asmentioned above ..."

"Article 165.1 Mistakes on the names and numbers as well as other writtenand calculating mistakes, absence in a aspect of ways of decision anddiscrepancies of copies with the original are corrected by the court inevery time".

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27· The Applicants submitted a request for revision to the Supreme Court againstDecision [AA.No. 397/2016] ofthe Court of Appeals.

28. On 28 March 2017, the Supreme Court rendered Decision [REV. A. No.6/2017], which rejected the request for revision as inadmissible. The reasoningstates:

"[. ..J Based on foregoing it follows that against a final decision of thecompetent court for administrative matters of the second instance, arevision cannot be submitted; therefore, this Court dismissed the requestfor revision of the claimant as inadmissible."

Applicant's allegations

29· The Applicants allege that "pursuant to Article 165.1 of the LCP it is providedthe precise possibility of correction of judgment at any time, however thecourts did not want to take into account the relevant legal provision".

30. The Applicants further allege that the rejection of their request for correction ofJudgment [A. No. 447/2012] by regular courts violates their rights andfreedoms guaranteed by Article 49 [Right to Work and Exercise Profession] ofthe Constitution.

31. The Applicants request the Court to find that in the assessment of the provisionof Article 165.1of the LCP there has been an erroneous interpretation and thatall decisions rendered were contrary to the spirit of this provision.

Assessment of the admissibility of Referral

32. The Court first examines whether the Applicants' Referral has fulfilled theadmissibility requirements established in the Constitution and as furtherspecified in the Law and foreseen in the Rules of Procedure.

33. In this respect, the Court refers to paragraphs 1 and 7 of Article 113[Jurisdiction and Authorized Parties] of the Constitution which establish:

"1. The Constitutional Court decides only on matters referred to the courtin a legal manner by authorized parties.

(...)

7. Individuals are authorized to refer violations by public authorities oftheir individual rights and freedoms guaranteed by the Constitution, butonly after exhaustion of all legal remedies provided by law".

34. The Court refers to Article 49 [Deadlines] of the Law, which stipulates:

The referral should be submitted within a period of four (4) months. Thedeadline shall be counted from the day upon which the claimant has beenserved with a court decision.

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35. In this respect, the Court considers that the Applicants are an authorized party,have exhausted all legal remedies and have filed a Referral within theprescribed time limit.

36. However, the Court further refers to Articles 48 [Accuracy of the Referral] ofthe Law, which establish:

"In his/her referral, the claimant should accurately clarify what rightsandfreedoms he/she claims to have been violated and what concrete act ofpublic authority is subject to challenge".

37. The Court further refers to Rule 36 (1) (d) and (2) (b) of the Rules ofProcedure, which stipulate:

"(1) The Court may consider a referral if:[...](d) the referral is primafaciejustified or not manifestly ill-founded.

(2) The Court shall declare a referral as being manifestly ill-founded whenit is satisfied that:

[...]b) the presented facts do not in any way justify the allegation of aviolation of the constitutional rights,"

38. In the present case, the Court notes that there are two groups of the courtproceedings which the Applicants have conducted before the regular courts,and that these proceedings, by their essence, may be divided into:

(i) The court proceeding for annulment of the IOBCSK Decision[02/288/2011] of 31 January 2012.

(iO The court proceeding for correction of the Judgment [A. No. 477/2012]of the Basic Court of 15January 2014.

39. The Court, taking into account all the specifics of both court proceedings, willconduct their individual analyzes.

(iJ Court proceedings for the annulment of the IOBCSKDecision[02/288/2011] of31 January 2012

40. The Court notes that the Applicants began the first court proceeding by filing astatement of claim before the Basic Court for the annulment of the IOBCSKDecision [02/288/2011] of 31 January 2012.

41. The Court further notes that on 15 January 2014, the Basic Court approved theApplicants 'claim and rendered Judgment [A. No. 477/2012], which annulledthe IOBCSK decision, and remanded the case for reconsideration, obliging that"the IOBCSK shall act in accordance with the remarks given in the judgment

"

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42. In this regard, the Court notes that on 6 February 2014, the IOBCSK receivedthe Judgment ofthe Basic Court [A.No. 477/2012], and in accordance with theinstructions from the Judgment of 4 March 2014, rendered new Decision [No.02/30/2014], which rejected the Applicants' claims as ungrounded. Bythis, thesubject of the dispute before the IOBCSKwas related to the employment statusof the Applicants.

43. In this regard, the Court notes that the reasoning of the IOBCSKDecision [No.02/30/2014], among others, states:

''Against the decision of the Panel, the dissatisfied party who claims thatthe decision of the Panel is not lawful, may initiate an administrativedispute in the competent court within 30 (thirty) days from the date ofreceipt of the decision. The initiation of an administrative dispute does notstay the execution of the Panel's decision".

44. Taking into account the instruction on the legal remedy in the IOBCSKDecision, as well as the legal provisions of the Law on AdministrativeProcedure, the Court notes that the Applicants at this stage of proceedings hadthe opportunity that within 30 days from the date of service of the IOBCSKDecision [NO.02/30/2014], to initiate an administrative dispute before theBasic Court in order to request a review of legality of the Decision of IOBCSK.

45. However, the Court notes that the Applicants did not take these proceduralsteps, but they initiated another court proceeding before the Basic Court, thusmissing the possibility of challenging the legality of the IOBCSK Decision [No.02/30/2014], thereby waiving the possibility that through regularadministrative dispute, try to exercise their rights.

(iiJ Court proceeding for correction of the Judgment of the BasicCourt [A. No. 477/2012] Of1SJanuary 2014

46. The Court notes that on 31 October 2016 the Applicants filed a new requestwith the Basic Court for the correction of the Judgment [A. No. 477/2012] ofthe Basic Court of 15January 2014, by which they initiated the second group ofproceedings.

47. However, the Court notes that the that the very essence of the second courtproceeding relates to the Applicants' request by which they requested the BasicCourt that pursuant to Article 165.1of the LCP corrects its earlier judgment [A.No. 477/2012] of 15 January 2014, and in the very essence of the subjectmatter, in a way that would enable them to be reinstated to their workingplaces, and to exercise monetary compensation for the period they did notwork.

48. In this regard, the Court notes that both the Basic Court and the Court ofAppeals dealt with the Applicants' request, but exclusively from the proceduralpoint of view of the submitted request, that is, whether such a request forcorrection was submitted in accordance with Article 165.1 of the LCP, which,inter alia says that:

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.,Correction of the decisionArticle 165

Article 165.1 Mistakes on the names and numbers as well as other writtenand calculating mistakes, absence in a aspect of ways of decision anddiscrepancies of copies with the original are corrected by the court inevery time".

49. In this regard, the Court observes that the Basic Court, in its decision of 1November 2016, found that the judgment which correction was requested bythe Applicants, did not contain flaws foreseen by Article 165.1 of the LCP,namely the Judgment [A. no. 477/2012] of the Basic Court, does not containmistakes" on the names and numbers as well as other written and calculatingmistakes, absence in a aspect of ways of decision ..."

50. The Court also notes that the same position in its decision [AA.No. 397/2016]was also taken by the Court of Appeals, which rejected the Applicants' appeal,taking into account the fact that Article 165.1 of the LCP allows for thecorrection of the court decisions, but only if it is about technical errors thatmay arise during their preparation or during the writing, while in the presentcase, the Court of Appeals finds that "in the challenged judgment of the BasicCourt there is nothing to be corrected, because it is lawful and fair, and it wasrendered in accordance with the legal provisions ...".

51. Furthermore, the Court notes that the Applicants also submitted a request forrevision to the Supreme Court, alleging erroneous interpretation of Article165.1 of the LCPby the lower courts.

52. With regard to this decision of the Supreme Court challenged by theApplicants, the Court notes that in the decision [REV. A. No. 6/2017] of 28March 2017, the Supreme Court did not deal with the main appealingallegations of the Applicants regarding erroneous interpretation of Article 165.1of the LCP, but solely with a question of procedural nature relating to the typeof legal remedy submitted by the Applicants to the Supreme Court challengingthe legality of the lower courts' decisions.

53. In this regard, the Court notes that the Supreme Court found that, inaccordance with the relevant legal provisions of the Law on AdministrativeConflicts (hereinafter: LAC), in Article 24.1 and Article 25.1 was regulated theexistence of two categories of extraordinary legal remedies that the dissatisfiedthe party may submit to the Supreme Court regarding the final decision of thesecond instance court for administrative matters.

54. In the first category is the request for extraordinary review of the courtdecision, as provided by Article 24, paragraph 1of the LAC, which inter aliaprovides that:

"Article 24.1. Against the final form decision of the Competent Court foradministrative matters of second instance, the party may submit to theSupreme Court of Kosovo the request for extraordinary review of the legaldecision. "

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55. In the second category is the request for protection of legality as it is providedby Article 25.1 of the LACwhich provides, inter alia, that,

"Article 25. 1. Against the final form decision, the public Prosecutor maysubmit to the Supreme Court of Kosovo the request for protection oflawfulness, if by such a decision the law, other provisions or general acthave been violated."

56. Based on this, the Court notes that in accordance with Decision [REV. A. No.6/2017] of the Supreme Court, the Applicants failed to submit an appropriateform of legal remedy to the Supreme Court, which in this case would be requestfor extraordinary review of the court decision, but instead, the Applicantssubmitted a "request for revision, which is not in accordance with the relevantlegal provisions of the LAC(Article 24, paragraph 1 and Article 25, paragraph1).

57. Therefore, the Court finds that due to the fact that the Applicants did notproceed with the legal remedy available at any time, they contributed to thefact that the Supreme Court could not continue to establish the merits of theirappealing allegations of erroneous interpretation of Article 165.1 of LCP,allegedly committed by lower court courts.

58. Taking into account all the circumstances of the case, the Court notes that theregular courts in the second court proceeding did not deal with matters ofemployment relationship, or any other rights or obligations arising from therights of the Applicants to work, but exclusively to matters of proceduralnature.

59. Based on the above, the Court does not see any arbitrariness in the reasoningof the challenged decisions of the regular courts in the application of thesubstantive law, and also cannot find elements that would indicate irregularityor arbitrariness in rendering the challenged decisions to the detriment of theApplicants.

60. In addition, the Court considers that nothing in the case presented by theApplicants indicates that the proceedings before the regular courts were unfairor arbitrary such that the Constitutional Court would be satisfied that therights guaranteed by Article 49 [Right to Work and Exercise Profession] of theConstitution have been denied to the Applicants.

61. The Court considers that it is the Applicants' obligation to substantiate theirconstitutional allegations and to submit prima facie evidence indicating aviolation of the rights guaranteed by the Constitution and the ECHR. Thatassessment is in compliance with the case-law of the Court (see: case of theConstitutional Court No. KI19/14 and KI21/14 Applicants Tafil Qorri andMehdi Syla, of 5 December 2013).

62. However, the Court finds that the Applicants did not substantiate theirallegations, nor did they show that there has been a violation of their rights.

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63· Therefore, the Applicants' Referral is manifestly ill-founded on constitutionalbasis and is to be declared inadmissible, in accordance with Rule 36 (1) (d) and(2) (b) ofthe Rules of Procedure.

FOR THESE REASONS

The Constitutional Court of Kosovo, in accordance with Article 113 (7) of theConstitution, Article 47 of the Law and Rules 36 (1) (d), (2) (b) of the Rules ofProcedure, in the session held on 1March 2018, unanimously

DECIDES

I. TO DECLAREthe Referral inadmissible;

II. TO NOTIFYthis Decision to the Parties;

III. TO PUBLISH this Decision in the Official Gazette in accordance withArticle 20(4) of the Law and

IV. This Decision is effective immediately.

Constitutional Court

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, -:ta Rama-Hajrizi

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