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Prishtina, 23 May 2014Ref.no.:RK 628/14
RESOLUTION ON INADMISSIBILITY
III
Case No. KI92/13
Applicant
Shefqet Tolaj
Constitutional Review of the Judgment Rev. nr. 272/2011, of the
SupremeCourt, dated 16 April 2013
THE CONSTITUTIONALCOURTOF THE REPUBLIC OF KOSOVO
composed of
Enver Hasani, PresidentIvan Cukalovic, Deputy-PresidentRobert
Carolan, JudgeAltay Suroy, JudgeAlmiro Rodrigues, JudgeSnezhana
Botusharova, JudgeKadri Kryeziu, Judge, andArta Rama-Hajrizi,
Judge.
Applicant
1. The Referral is submitted by Mr. Shefqet Tolaj (hereinafter:
the "Applicant"),residing in Prishtina, represented by Mr. Ndue
Thaqi and Mr. Qerim Zogaj,practicing lawyers from Prishtina.
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Challenged decision
2. The Applicant challenges the Supreme Court Judgment Rev. no.
272/11, dated16April 2013, which was served upon the Applicant on
14 May 2013.
Subject matter
3. The Applicant requests constitutional review of the Supreme
Court JudgmentRev. no. 272/11, which allegedly violates his human
rights as guaranteed byArticle 49 [Right to Work and Exercise
Profession] and Article 51 [Health andSocial Protection] of the
Constitution of the Republic of Kosovo (hereinafter:the
"Constitution").
Legal basis
4. The Referral is based on Article 113.7of the Constitution,
Article 47 of the Law,No. 03/L-121, on the Constitutional Court of
the Republic of Kosovo(hereinafter: the "Law") and Rule 56 of the
Rules of Procedure of theConstitutional Court of the Republic of
Kosovo (hereinafter: the "Rules ofProcedure").
Proceedings before the Court
5. On 26 June 2013, the Applicant submitted the Referral to the
ConstitutionalCourt of the Republic of Kosovo (hereinafter: the
"Court").
6. On 1 July 2013, the President by Decision GJR. KI92/13
appointed JudgeRobert Carolan as Judge Rapporteur. On the same day,
by Decision KSH.KI92/13 the President appointed the Review Panel
composed of SnezhanaBotusharova (Presiding), Kadri Kryeziu and Arta
Rama-Hajrizi.
7. On 11 September 2013, the Applicant was notified of the
registration of theReferral. On the same day the Supreme Court was
notified and was providedwith a copy of the Referral.
8. On 13 September 2013, the Court requested from the Basic
Court in Prishtinathe case file of the employment dispute which was
dealt with in regular courts,between the Applicant and KEK.
9. On 18 September 2013, the Basic Court in Prishtina submitted
a copy of therequested case file to the Court.
10. On 11December 2013, KEKwas notified of the registration of
the Referral andwas provided with a copy of the Referral.
11. On 17 March 2014, the Review Panel considered the Report of
the JudgeRapporteur and made a recommendation to the Court on the
Inadmissibility ofthe Referral.
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Summary of facts
12. The Applicant was employed in the Kosovo Energy Corporation
(hereinafter:KEC) with a contract for an indefinite period of
time.
13. On 27 July 2003 the Applicant was encountering some health
issues, afterinitial check-ups at the private Medical Institute
"Galaxy +", he was hospitalizedand had to undergo medical surgery.
Thus, he was on medical leave until 31October 2003.
14. On 2 December 2003, the Manager of the Distribution Division
of KEC (wherethe Applicant was employed) issued a Decision 1348 on
termination of theApplicant's employment relationship, due to
"absence without leave from workfor more than 5 (five) days
uninterrupted starting from 01.09.2003 until31.10.2003. This type
of absence from work is sanctioned by Article 11paragraph 11.1 item
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thus that evidence absolutely cannot be ignored by the
respondent underthe assumption that the same was not delivered to
the respondent at thetime the respondent considers necessary. The
law obliges the employee tonotify the employer when he takes
medical leave, which according to thewitness Lutfi Breznica the
claimant did through him, therefore in thissituation the respondent
should have waited on the claimant's proof forabsence from work and
not only be satisfied with his absence and decide toterminate his
employment relationship."
20. On an unspecified date, KEC filed an appeal with District
Court in Prishtinaagainst Judgment C1. nr. 261/08 of Municipal
Court in Prishtina.
21. On 26 May 2011, District Court in Prishtina rendered the
Judgment Ac. nr.1139/2010, rejecting the appeal of KEC and
confirmed the Judgment of theMunicipal Court in Prishtina.
22. In its Judgment, the District Court in Prishtina stated
that:
''According to the panel's finding based on the confirmed
factual situation,the first instance court correctly applied the
material law when it foundthat the reasons and conditions for the
termination of the employmentrelationship are envisaged with
Article 11 of UNMIK Regulation nO.2001/27on the Basic Law on Labour
in Kosovo, which are not met in this particularcase in order to
terminate the claimant's employment relationship due toabsence
without leave from work. Additionally, it cannot be considered
aviolation of the respondent's disciplinary proceeding, because the
claimantjustified with medical evidence his absence from work
during the contestedtime span. Further, the first instance court
proved with evidence that therespondent was notified of the
illness, respectively the operation of theclaimant, facts which
were confirmed by the court through evidence andtestimonies of
witnesses Fatime Ahmeti and Lutfi Breznica. Pursuant to thepanel's
finding, the first instance court in this factual situation
correctlyimplemented the above mentioned provisions on the Basic
Law on Labourin Kosovo, as well as Article 452 of the LCP when it
found that theclaimant's statement of claim is grounded and that
the respondent isobliged to compensate the expenses of the
proceedings."
23. On an unspecified date, KEC filed a revision with the
Supreme Court, againstJudgment Ac. nr. 1139/2010 of the District
Court in Prishtina.
24. On 16 April 2013, Supreme Court adopted Judgment
Rev.nr.272/2011, whichapproved the revision of KEC, and annulled,
as unlawful, Judgment C1. nr.261/08 of Municipal Court in Prishtina
and Judgment Ac.nr.1139/2010 of theDistrict Court in Prishtina.
25. In its reasoning the Supreme Court stated that: "The lower
instance courts,based on inadmissible proof, accepted the
claimant's claim that he wasjustifiably absent from workfor more
than 5 days in a row, since he was ill,and he had undergone an
appendicitis operation, facts he proved with thedischarge paper
from HI "Galaxy" in Prishtina dated 22.08.2003. Due to thefact that
he had been sick and operated on, the claimant notified the
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respondent in time, but the KEC's Regulation on the Employment
Relationshipdated 18.12.2001 that isfound in the case file, in
Article 10.4 envisages that thecompetent body to give medical leave
to KEC employees is the OccupationalHealth Institute (OH!). From
this it is found that the claimant did not actpursuant to Article
10.4 of this Regulation since during the contested period hedid not
obtain his medical leave from the Occupational Medical Health,
whichis part of KEC. Instead the claimant bases his absence from
work mainly onthe above mentioned discharge paper, in violation of
the above mentionedprovision of this Regulation, thus without
obtaining the medical leave fromthe above mentioned institute."
The Applicable Legislation
26. The Court notes that at the time when the events took place,
the applicable lawin this matter was UNMIK Regulation No. 2001/27
on Essential Labour Law inKosovo (hereinafter: the "UNMIK
Regulation 2001/27")
27. In Section 11 - Termination of a Labour Contract of the
UNMIK Regulation2001/27, inter alia, it is stipulated:
"11.1A labour contract shall terminate:
(d) on the grounds ofunsatisfactory pe1formance by the
employee;
11.4 Unsatisfactory performance shall include thefollowing:
(a) Unjustified absence from work; and(b) Repeated mistakes not
sufficient in themselves to justify adismissal, but which given
their frequency and seriousness disrupt thenormal course of the
employment relationship."
28. Section 22 of the UNMIK Regulation 2001/27, regulates the
issue of Sick Leave,where is stated that:
"22.1 An employee shall notify the employer within 48 hours if
taking sickleave.
22.2 Where sick leave is taken as a result of a work-related
accident orillness, an employee shall be entitled to his/her
salary/wage for suchperiod."
29. On 18 December 2001, KEC also adopted its Regulation on
EmploymentRelationship (hereinafter: "KEC Regulation"), which
regulates rights andobligations of KECemployees.
30. Article 10 of KEC Regulation regulates medical leave for KEC
employees,stating that:
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"10.1 The employees are entitled to a maximum of 15 days of paid
medicalleave for each calendar year.
10.2 Excluding the medical leave due to injury at work or
vocational illnessacquired at the working place.
10.3 The employee must notify the employer within 48 hours when
medicalleave is taken.
10.4 For the KEC employees the Occupational Health Institute
(OHI) has thecompetencies to allocate medical leave.
10.5 The payment for up to 7 days medical leave will be
calculated at therate of up to 70%, the rest up to 15days at
90%.
10.6 The employee will be entitled to 100% payment for medical
leave dueto injury at the work place."
31. In Article 13of KECRegulation is stated that
"The employment contract of an employee at KEC-entity is
terminated:• Upon the employees death;• Upon written agreement
between the employer and the employee;• In serious cases of
misconduct by the employee;• Due to unsatisfactory fulfillment of
work duties by the employee;• Upon the expiration of the duration
of employment contract and• Pursuant to legal power;• Unjustified
absence from workfor more than 5consecutive days;• Repeated errors
which are insufficient per se to justify the dismissalfrom work but
with their frequency and weight disrupt the normalflow of
employment relation;
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Applicant's allegations
32. The Applicant claims that "In this case Article 49,
paragraph 1 and Article 51 ofthe Constitution of the Republic of
Kosovo have been violated, because theright to work and health
protection are rights guaranteed by the constitutionand enshrined
in the respective international conventions. Additionally, due
tothe fact that the rights emphasized above are two of the most
fundamentalhuman rights, as well as the violation of the provisions
of the basic Law onLabour."
33. Furthermore, the Applicant requires from the Court to "Annul
the Judgment ofthe Supreme Court of Kosovo Rev. no. 272/2011 dated
16.04.2013 due to theviolation of fundamental human rights as a
constitutional category, inconjunction to the basic rig hts to
work, to leave in force the Judgments of boththe first instance and
second instance court, or redirect the case to thecompetent court
for retrial."
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Admissibility of the Referral
34. The Court notes that to be able to adjudicate the
Applicant's complaint, theCourt needs first to examine whether the
Applicant has fulfilled theadmissibility requirements laid down in
the Constitution and further specifiedin the Law and the Rules of
Procedure.
35. In this regard, the Court refers to the Article 113.7 of the
Constitution, whichprovides that:
"Individuals are authorized to refer violations by public
authorities of theirindividual rights andfreedoms guaranteed by the
Constitution, but onlyafter exhaustion of all legal remedies
provided by law".
36. The Court notes that the most recent decision related to
this case is theSupreme Court decision of 16April 2013, which was
served on the Applicant on14 May 2011. The Applicant filed the
referral with the Constitutional Court on16 June 2013, which means
that he filed the referral before this Court incompliance vdth
requirements of Article 113.7 of the Constitution and withinthe
deadline set forth by Article 49 of the Law.
37. In addition, the Court also takes into account Rule 36 of
the Rules of Procedure,which provides:
"(1) The Court may review referrals only if:
(c) The referral is not manifestly ill-founded.
(2) The Court shall reject a Referral as being manifestly
ill-founded whenit is satisfied that:
(a) the Referral is not prima fa ciejus tified, or
(d) When the Applicant does not sufficiently substantiate
hisclaim."
38. The Court notes that in the present case the regular courts
have treated theapplicant's allegations within their scope and
competences. The Court reiteratesthat assessment of the legality
falls within the jurisdiction of the regularjudiciary.
39. Furthermore, the dissatisfaction with the decision or merely
mentioningarticles or provisions of the Constitution is not
sufficient for the Applicant tobuild an allegation on a
constitutional violation. When alleging violations of
theConstitution, the Applicant must provide a compelling and
well-reasonedargument in order for the Referral to be grounded.
(see Resolution onInadmissibility in Case KI185/13, Applicant KEK,
Constitutional review of theDecision Rev. No. 368/2011 of the
Supreme Court of the Republic of Kosovo, of18 February 2014)·
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40. The Court reiterates that it is not its task under the
Constitution to act as acourt of appeal, or a court of fourth
instance, in respect of the decisions takenby regular courts.
41. The Court can only consider whether the evidence has been
presented in such amanner and the proceedings in general, viewed in
their entirety, have beenconducted in such a way that the Applicant
had a fair trial (see among othersauthorities, Report of the Eur.
Commission on Human Rights in the caseEdwards v. United Kingdom,
App. No 13071/87 adopted on 10 July 1991).
42. As a result, the Court finds that the Applicant's Referral
does not meet theadmissibility requirements, since the Applicant
has failed to substantiate hisallegations and submit supporting
evidence on the alleged constitutionalviolation by the Challenged
Decision.
43. Therefore, pursuant to Rule 36 (2) b) of the Rules of
Procedure, the Referral ofthe Applicant must be rejected as
manifestly ill-founded.
FOR THESE REASONS
The Constitutional Court, pursuant to Rule 36 (2) b) and 56.2 of
the Rules ofProcedure, on 17March 2014, unanimously
DECIDES
I. TO REJECT the Referral as Inadmissible;
II. TO NOTIFYthe Parties of this Decision;
III. TO PUBLISH this Decision in the Official Gazette, in
accordance withArticle 20 (4) of the Law;
IV. TO DECLAREthis Decision immediately effective.
Judge Rapporteur President of the Constitutional Court
Robert Carolan
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