RESOLUTION ON INADMISSIBILITY

REPUBLIKA E Koso,·i!s · Pt:lIYliJIlIKA KOCOUO· REPUDLIC OF KOSOVO
GJYKATA KUSHTETUESE YCTABHM. CYLl CONSTITUTIONAL COURT I>rishtina , 4 August 20 14
Ref. No.,RK68S/ '4
RESOLUTION ON INADMISSIBILITY
Case no. KI52/14
Applicants
Rasi(: Verica; Aksic Rasic DanijeJa; Aksic Dosta; Arsic Dragica; Becelic Danica; Bulatovic Radc; Cvcjic (Marikovic) Vesna; Furunovic (\lic) Dus anka; Galic Svetislav; Joksimovic (Draskovic) Jasmina ; Joksimovic Malina; Jovanovic Milena; Kilibarda Branislav; Kilibarda (Arsic) Zlatana; Krivokapic StaIjinka; Lckic Bozidar; Lekic Dus ko; Maksimovic Zivko; Marinkovic Svetislav; Marinkovic Zoran; Micic Rodoljub; Milanovic Vasna; Milosevic Darko; Milovanovic Nebojsa; Milovanovic Radovan; Milovanovic Zlatija; Mitrovic Bacevic Dusanka; Nedeljkovic Stana; Novakovic Dragoljub; Novakovic Nikola; Novakovic Zdenka; Ognjcnovic Miloslavka; Pavic Biserka; Stamcnkovic­ Jankovic Jasmina; Stojanovic Dcsanka; Stojkovic (Nikolic) Vidosava; Trajkovic ZOI·an; Vasic Sinisa and Kovacevic Marija Constitutional review of Judgment AC-I-12-0012 ofthe Appellate Panel of the Special Chamber of the Supreme Court, of 24 October 2013 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KOSOVO composed of:
Enver Hasani, President
Ivan Cukalovic, Deputy-President
Robelt Carolan , Judge
Altay Suroy, Judge
Almira Rodrigues, Judge
Snezhana Botusharova, Judge
Alta Rama-Hajrizi, Judge
Applicant
1. The Referral was submitted by Rasic Verica, Aksic Rasic Danijela, Aksic Dosta,
Arsic Dragica, Becelic Da nica, Bulatovic Rade, Cvejic (Marikovic) Vesna,
Fu runoviC (lIic) Dusa nka, Galic Svetislav, Joksimovic (Draskovic) Jasmina,
Joksimovic Malina, Jovanovic Milena, Kilibarda Branislav, Kiliba rda (Arsic)
Zlatana, Krivokapic Staljinka, Lekic Bozidar, Lekic Dusko, Maksimovic Zivko,
Marinkovic Svetislav, Marinkovic Zo ra n, Micic Rodoljub, Mila novic Vasna,
Milosevic Darko, Milovanovic Nebojsa, Milovanovic Radova n, Milovanovic
Zlatija, Mitrovic Bacevic Dusanka, Nedelj kovic Stana, Novakovic Dragoljub,
Novakovic Nikola, Novakovic Zdenka, Ognjenovic Miloslavka, Pavic Biserka,
Stamenkovic-Jankovic Jas mina, Stojanovic Desanka, Stojkovic (Nikolic)
Vidosava, Trajkovic Zoran, Vas ic Sinisa and Kovacevic Marija Olereinafter, the
Applicants), who are represented by Mr. Slavko D. Anicic, lawyer from
Belgrade.
Challenged decision
2. The Applicants challenge the Judgment ASC-I-12-0012 of th e Appellate Panel
of the Special Chamber of the Supreme Court of Kosovo O1ereinafter: the
Appellate Panel) of 24 October 2013, which was served on th e Applicants on 22
November 2013.
3. The Judgment was served on the Applicants on 22 November 2013, Applicant
Stamenkovic-Jankovic Jasm ina was not mentioned with that judgment.
Subject matter
4. The subj ect matter is the constitutional review of the challenged decis ion, which
allegedly denies to th e Applicants the right to 20% share from th e privatization
of Socially Owned Enterprise HTP "SLOGA" from Prishtina O1ereinafter:
SLOGA).
5. The Applicants claim that by challenged decision were violated th eir rights,
guaranteed by the Constitution of th e Republic of Kosovo O1ereinafter: the
Constitution), namely Article 22 [Direct Applicability of International
Agreements and Instruments] and Alticle 31 [Right to Fair a nd Impmtial Trial]
in conjunction with Alticle 46 [Protection of Property], and Article 6 (1) [Right
to fair trial] of the European Convention on Human Rights a nd Fundamental
Freedoms (hereinafter, the Convention).
Legal basis
6. The Referral is based on Alticle 113.7 of the Constitution and Article 47 of the
Law on the Constitutional COUlt of th e Republic of Kosovo no. 03/L-121
(hereinafter: the Law).
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Proceedings before the Constitutional Court
7. On 21 March 2014, the Applicants submitted the Referral to the Constitutional
Court of th e Republic of Kosovo (hereinafter: the Court).
8. On 2 April 2014, the President appointed Judge Almiro Rodrigues as Judge
Rapporteur and the Review Panel co mposed of Judges Altay Suroy (Presidi ng),
Arta Rama-Hajrizi and Kadri Kryeziu.
9. On 14 May 2014, the COUlt notified the Applicants on the registration of
Referral and sent a copy of the Referral to the Special Chamber of the Supreme
Cou rt (hereinafter: SCSC).
to. On 23 May 2014, th e COUlt requested from the Applicant Stamenkovic­
Jankovic Jasmina to clarify some aspects of the appeal procedure before SCSC.
11. On 13 Jun 2014, the Applicant Stamenkovic-Jankovic Jasmina informed that
there is no decision of th e Appellate Panel in relation to her case.
12. On 26 June 2014, Judge Kadri Klyeziu notified in writing th e Court for his
exclusion from the deliberation sessions for the period June-July 2014 until
the CoUlt decides regarding the allegations raised against him.
13. On 30 June 2014 the Pres ident of th e COUlt replaced Judge Kadri Klyeziu with
Judge Ivan CukaloviC as a member of the Review Panel.
14. On 3 July 2014, the Review Panel considered the report of the Judge
RapPOlteur and recommended to th e COUlt the inadmissibility of the Referral.
Summary offacts
15. On 24 November 2005, th e process of the privatization of SLOGA started.
16. On 5 August 2009, the Privatization Agency of Kosovo (hereinafter, the Agency)
published the final list of the employees entitled to 20% share from
privatization of SLOGA.
17. On 26 August 2009, the Applicants filed ",jth the SCSC an appeal against the
decision publishing th e final list ofthe en titled employees.
18. On 23 December 2011, the SCSC Trial Panel (Judgment SCEL-09-0023)
rejected th e Applicants' claims, considering that the Applicants have not met
the requirements of Alticle lOA of UNMIK Regulation 2003/ 13, because the
termination of the employment relationship to the Applicants happened before
9June 1999.
19. The SCSC Trial Panel reasoned that:
''As to th e requirements pI'escribed by law that the employee was in
employment relationship for at least three yew's p"io,' to p"ivatization, the
Court takes into account as evidence in the following ordel': 1) the data of
the employee from the l'egistl'Y book, 2) the data fi'om the work booklet of
the complainant, 3 ) the so-calledfol'ms M1-M2 (insurance fOl'ms), in which
is dete1'1nined the beginning and the end of employment I'elationship with
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the SOE, and the l'easons for termination of insurance (and therefore the
termination ofthe employment relationship), 4) the certificate issued by the
Archives of the Municipality of Prishtina, stating the duration of
employment 1"elationship with th e SOE, 5) the cel·tificate issued by the
Board of the Kosovo Pension Fund, which provides the duration of
employment l'elationship with the SOE, 6) other decisions and ce rtificates of
the SOE l'elated to the employment l'elationship of th e Appellant with the
SOE, and decisions on the appointment in the job position, on annual leave,
on determination ofsalary, and so on".
20. More specifically, th e Trial Panel of SCSC rejected the appeal of th e Applicant
Biserka Pavic with the reasoning "that she had disability pension, before the
pl'ivatization ofSLOGA u.
21. In May 2012, the Applicants a ppealed th e Judgment of th e Trial Panel, "due to
erron eousfacts, violation ofmaterial and procedural law".
22. On 24 October 2013, the Appellate Panel (Judgment AC-I-12-0012) rejected the
Applicant's appeal and upheld th e Judgment of the Trial Panel.
23. However, by that Judgment of th e Appellate Panel (AC-I-12-0012) was not
considered the appeal of th e Applicant Stamenkovic-Jankovic Jasmina. Even
th ough she filed the appeal together 'A~th th e other Applicants, the judgment of
th e Appellate Panel does not menti on at all either her situation or even her
name.
Applicable law
"REGULATION NO. 2003/ 13 ON THE TRANSFORMATION OF THE RIGHT
OF USE TO SOCIALLY-OWNED IMMO VABLE PROPERTY
Article 10 Entitlement ofemployees 10.4 For the purpose of this section an employee shall be conside1"ed as
eligible, if such employee is reg istered as an employee with the
Socially-Owned Enterprise at the time of pl'ivatiza tion and is
established to have been on the payroll of the enterprise f or not less
than three years. This requirement shall not preclude employees, who
claim that they would have been so registered and employed, had they
not been subjected to discl'imination,from submitting a complaint to
the Special Chamber pll1"SUant to s ubsection 10.6.
Applicant's allegations
24. The Applicants allege that "the stan ce of the mentioned Panels - that the
appellants tel'minated their W01'k before 09.06.1999 - is a l'esult of
insufficiently cQl'eful and conscientious assessment of presented evidence and
erroneous assessment of the result of the entire proceedings conducted by the
Special Chamber of the Supreme Co urt of Kosovo and s ince it is in evident
contradiction with other evidence of higher probative value, then it implies
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that the same Court consciously violated the right to fair and impartial trial
guaranteed by Constitution (A rticle 31 of the Constitution), in this case to the
detriment ofthe appellants".
25. The Applicants consider th at "I'endering Judgment SCEL-09-0023 of
23.12.2011 and Judgm ent AC-I-12-00120f date 24.10.2013, th e Special
Chamber ofthe Supreme Co urt of Koso va, in the part that is challenged by this
Ref erral, violated the provisions of Article 22 and Article 31 in conjunction
with AI·ticle 46 of th e Constitution of the Republic ofKosovo, as well as Article
6 (1) ofthe European Convention of Human Rights, thus dil'ectly denying th eir
I'ight to shQ/'e of proceeds from the sale of SOE HTP SLOGA in Prishtina,
provided by Article 10 of UNMIK Regulation 2003/ 13 of 9 May 2013".
Admissibility ofthe Referral
26. The Court first exa mines wheth er th e Applicants have fulfill ed admissibility
requirements as laid down in the Constitution and furth er s pecified in th e Law
and Rules of Procedure.
27.
In this respect, the COUlt refers to Alticle 113 of the Constitution, which
establishes:
"1. The Constitutional CO lll"t decides only on matters ref erred to the court in a legalmannel' by authorized parties. ( .. .) 7, Individuals are authorized to ref er violations by public authorities of their individual rights and fi'eedoms guaranteed by the Constitution, but ollly after exhaustion of all legal remedies provided by law". 28. The COUIt, also refers to Alticles 47 (2) and 48 of the Law, which provides:
The individual may submit the ref erral in question only after he/ she has
exhausted all the legal remedies provided by the law.
In his/ her ref erral, the claimant should accurately clarify what rights and
fi'eedoms he/she claims to have been violated and what concrete act of
public authority is subject to challenge.
29. The COUIt, also takes into account Rule 36 (1) a) and c) and 36 (2) d) of th e
Rules of Procedure, which provides :
1.
The Cow,t may only deal with Ref errals if:
a ) all effective remedies that Q/'e available undel' the law against the
Judgm ent aI' decision challenged have been exhausted,
c) the Ref en'al is not manifestly ill-founded.
2. The Cow,t shall rej ect a Ref erral as being manifestly ill-founded when it
is satisfied that:
c. ..)
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d) the Applicant does not sufficiently substantiate his claim;
30. The Court recalls th at the challenged decision has missed to respond to the
appeal of th e Applicant Stamenkovic-Jankovic Jasmina. Thus, due to an
omission of th e Appellate Panel, no final decision was made on her appeal.
31.
The COUlt considers th at the omission relevant for the purpose of assessing the
admissibility of th e Referral, as th ere is no final Appellate Panel decision in
relation to th e appeal of th e Applicant StamenkoviC-Jankovic J asmina.
32. The COUlt considers that the omission in Appellate Panel decision is a matter of
legality and it is not th e task of the Constitutional Court to correct the omissions
of such nature of th e regu lar COU ltS. (See Constitutional CoUlt Resolution in
case KI 104/13, Applica nt Adem Maloku, Constitutional Review of the Decision
ASC-ll-0069 of the Appellate Panel of th e Special Chamber of the Supreme
Court, para 33).
33. Therefore th e Applicant Stamenkovic-Jankovic Jasmina has not exhausted all
legal remedies provided by law, including the request to the Appellate Panel in
order to have a decision on her appeal.
34. The rationale for the exhaustion rule is to afford the concerned public
authorities the oppOltunity to prevent or put right the alleged violation of the
Constitution. The rule is based on th e assumption that the Kosovo legal order
shall provide an effective legal remedy for the violation of th e constitutional
rights. This is an impOltant aspect of the subsidiary character of the
Constitution . (See Resolution on inad missibility, AAB-RIINVEST University
L.L.c. Prishtina v. the Gove17lment of the Republic ofKosovo, case KI41/09, of
21 JanuaIY 2012 and see mutatis mutandis, ECHR Selmouni vs Fl"Qnce, No.
25803/94, decision of 28 July 1999).
35. Therefore, in accorda nce with Rule 36 (1) a) of the Rules of Procedure, the
Referral is inadmissible in relation to the Applicant Stamenkovic-Jankovic
Jasmina.
36. In relation to the other Applicants, th e COUlt recalls that they claim that the
Appellate Panel has not assessed th e presented evidence in a sufficiently careful
and conscientious manner and has erroneously assessed the results of the
entire proceedings, and for that reaso n has violated their rights guara nteed by
th e Constitution.
37. The COUlt notes that th e Appellate Panel, in answering the allegations of the
appeal, took into due account all the requi rements prescribed by law that allow
the em ployee to be entitled to the 20% share from the privatization of Socially
Owned Enterprise SLOGA.
38. The Court furth er notes that the reasoning provided in th e Jud gment of th e
Appellate Panel is clear, co mprehensible and fair.
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39. The COutt considers that th e Applicants have not substantiated th eir allegation
nor showed th at the Appellate Panel of the Special Chamber denied their rights
gua ranteed by the Constitution.
40. In this respect, the COutt reiterates th at it is th e role of the regu lar courts to
interpret and apply th e pertinent rules of both procedural and substantive law
(see, mutatis mutandis, Ga rcia Ruiz v. Spain , no. 30544/ 96, ECHR, Judgment
of 21 J anuary 1999, § 28; see also case No. KI70 / n , Applicants Faik Hima,
Magbule Hima and Bestar Hima , Resolution on inadmissibility, of 16
December 2 011)
41. The Constitutional COutt emphas izes that the correct and complete
determination of th e factu al situation is a full jurisdiction of the regular COUlts;
the role of th e Constitutional Court is solely to ensure compliance with the
rights guaranteed by the Constitution and other legal instruments and cannot,
therefore, act as a "fourth insta nce court" (see case A kdivar v. TIlI·key, no.
21893/93, ECHR, Judgment of 16 September 1996, para.65, see also case
Kl86/n , Applicant Milaim Berisha, Resolution on Inadmissibility of 5 April
2012).
42. FUlt hermore, it is not th e tas k of th e Co nstitutional Court to substitu te its own
assessment of the facts with th ose of th e regular courts and as a ge neral rule, it
is the duty of the regular COUlts to assess the evidence made available to them.
The Constitutional COutt's task is to asceltain whether the regu lar COutts'
proceedings we re fair in th eir entirety, including the way th e evidence was
taken. (See case Edwards v. United Kin gdom , NO.13071/ 87, RepOlt of the
European Commission of Human Rights of 10 J uly 1991).
43. In sum, the Court considers th at the Applicants have not justified and
substantiated the allegation th at th ere is an entitlement to a share of proceeds
even after the old age or th e disability pension.
44. FUlt hermore, th e dissatisfaction of th e Applicants with the outcome of the case
cannot of itself raise an arguable claim of a breach of the provisions of the
Constitution. (See case Mezotur-Tiszazugi Tarsulat v. Hungary, no. 5503/02,
ECHR, Judgment of 26 July 2005).
45. The COUlt considers th at th e facts presented by the Applica nts do not in any
way justify the allegation of a violation of the constitutional rights. Therefore, in
accordance with Rule 36 (1) c) and (2) d) of the Rules of Procedure, th e Referral
is manifestly ill-founded and thus inadmissible.
46. In all, th e Referra l is inadmissible, because the Applicant Stamenkovic­
J ankovic J asmina has not exhausted all legal remedies provided by law and the
oth er Applicants have not substantiated th eir allegations.
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FOR THESE REASONS The Constitutional Court of Kosovo, pursuant to Alticle 113.7 of the Constitution,
Articles 47. 2 and 48 of the Law and Rules 36 (1) a) and c) and 36 (2) d) of the Rules
of Procedure, in the session held on 3 J uly 2014, un animously
DECIDES
1. TO DECLARE the Referral Inadmissible;
II . To notify this decision to the parti es and to publish this decision in th e
Official Gazette, in accordance with Article 20 paragraph 4 of the Law;
and
III . This Decision is effective immediately.
Judge Rapporteur
Almi ro Rod rigues
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