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; Stamcnkovic­Jankovic 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 Danica, Bulatovic Rade, Cvejic (Marikovic) Vesna, Fu runoviC (lIic) Dusanka, Galic Svetislav, Joksimovic (Draskovic) Jasmina, Joksimovic Malina, Jovanovic Milena, Kilibarda Branislav, Kilibarda (Arsic) Zlatana, Krivokapic Staljinka, Lekic Bozidar, Lekic Dusko, Maksimovic Zivko, Marinkovic Svetislav, Marinkovic Zoran, Micic Rodoljub, Milanovic Vasna, Milosevic Darko, Milovanovic Nebojsa, Milovanovic Radovan, Milovanovic Zlatija, Mitrovic Bacevic Dusanka, Nedelj kovic Stana, Novakovic Dragoljub, Novakovic Nikola, Novakovic Zdenka, Ognjenovic Miloslavka, Pavic Biserka, Stamenkovic-Jankovic Jasmina, 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 the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo O1ereinafter: the Appellate Panel) of 24 October 2013, which was served on the 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 subject matter is the constitutional review of the challenged decis ion, which allegedly denies to the Applicants the right to 20% share from the privatization of Socially Owned Enterprise HTP "SLOGA" from Prishtina O1ereinafter: SLOGA).

5. The Applicants claim that by challenged decision were violated their rights, guaranteed by the Constitution of the Republic of Kosovo O1ereinafter: the Constitution), namely Article 22 [Direct Applicability of International Agreements and Instruments] and Alticle 31 [Right to Fair and 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 and 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 the 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 the Republic of Kosovo (hereinafter: the Court).

8. On 2 April 2014, the President appointed Judge Almiro Rodrigues as Judge Rapporteur and the Review Panel composed of Judges Altay Suroy (Presiding), 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, the COUlt requested from the Applicant Stamenkovic­Jankovic 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 the Appellate Panel in relation to her case.

12. On 26 June 2014, Judge Kadri Klyeziu notified in writing the 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 the 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 the COUlt the inadmissibility of the Referral.

Summary offacts

15. On 24 November 2005, the 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 the final list ofthe entitled employees.

18. On 23 December 2011, the SCSC Trial Panel (Judgment SCEL-09-0023) rejected the 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 the 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 the 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 certificates of the SOE l'elated to the employment l'elationship of the 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, the Trial Panel of SCSC rejected the appeal of the Applicant Biserka Pavic with the reasoning "that she had disability pension, before the pl'ivatization ofSLOG A u.

21. In May 2012, the Applicants appealed the Judgment of the Trial Panel, "due to erroneousfacts, 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 the Judgment of the Trial Panel.

23. However, by that Judgment of the Appellate Panel (AC-I-12-0012) was not considered the appeal of the Applicant Stamenkovic-Jankovic Jasmina. Even though she filed the appeal together 'A~th the other Applicants, the judgment of the Appellate Panel does not mention 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'ivatization 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 subsection 10.6.

Applicant's allegations

24. The Applicants allege that "the stance 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 ofpresented evidence and erroneous assessment of the result of the entire proceedings conducted by the Special Chamber of the Supreme Court 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 (Article 31 of the Constitution), in this case to the detriment ofthe appellants".

25. The Applicants consider that "I'endering Judgment SCEL-09-0023 of 23.12.2011 and Judgment AC-I-12-00120f date 24.10.2013, the Special Chamber ofthe Supreme Court 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 the Constitution of the Republic ofKosovo, as well as Article 6 (1) ofthe European Convention of Human Rights, thus dil'ectly denying their I'ight to shQ/'e of proceeds from the sale of SOE HTP SLOGA in Prishtina, provided by Article 10 ofUNMIK Regulation 2003/ 13 of9 May 2013".

Admissibility ofthe Referral

26. The Court first examines whether the Applicants have fulfilled admissibility requirements as laid down in the Constitution and further specified in the Law and Rules of Procedure.

27. In this respect, the COUlt refers to Alticle 113 of the Constitution, which establishes:

"1. The Constitutional COlll"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 the 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 Judgment aI' decision challenged have been exhausted,

c) the Ref en'al is not manifestly ill-founded.

2. The Cow,t shall reject 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 that the challenged decision has missed to respond to the appeal of the Applicant Stamenkovic-Jankovic Jasmina. Thus, due to an omission of the Appellate Panel, no final decision was made on her appeal.

31. The COUlt considers that the omission relevant for the purpose of assessing the admissibility of the Referral , as there is no final Appellate Panel decision in relation to the appeal of the 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 the task of the Constitutional Court to correct the omissions of such nature of the regu lar COU ltS. (See Constitutional CoUlt Resolution in case KI 104/13, Applicant Adem Maloku, Constitutional Review of the Decision ASC-ll-0069 of the Appellate Panel of the Special Chamber of the Supreme Court, para 33).

33. Therefore the 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 the assumption that the Kosovo legal order shall provide an effective legal remedy for the violation of the constitutional rights. This is an impOltant aspect of the subsidiary character of the Constitution . (See Resolution on inadmissibility, 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 accordance 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, the COUlt recalls that they claim that the Appellate Panel has not assessed the presented evidence in a sufficiently careful and conscientious manner and has erroneously assessed the results of the entire proceedings, and for that reason has violated their rights guaranteed by the Constitution.

37. The COUlt notes that the Appellate Panel, in answering the allegations of the appeal, took into due account all the requirements 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 the Judgment of the Appellate Panel is clear, comprehensible and fair.

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39. The COutt considers that the Applicants have not substantiated their allegation nor showed that the Appellate Panel of the Special Chamber denied their rights guaranteed by the Constitution.

40. In this respect, the COutt reiterates that it is the role of the regu lar courts to interpret and apply the pertinent rules of both procedural and substantive law (see, mutatis mutandis, Ga rcia Ruiz v. Spain , no. 30544/ 96, ECHR, Judgment of 21 January 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 emphasizes that the correct and complete determination of the factual situation is a full jurisdiction of the regular COUlts; the role of the 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 instance court" (see case Akdivar 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 the task of the Constitutional Court to substitu te its own assessment of the facts with those of the regular courts and as a general 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 were fair in their entirety, including the way the evidence was taken. (See case Edwards v. United Kingdom , NO.13071/ 87, RepOlt of the European Commission of Human Rights of 10 J uly 1991).

43. In sum, the Court considers that the Applicants have not justified and substantiated the allegation that there is an entitlement to a share of proceeds even after the old age or the disability pension.

44. FUlt hermore, the dissatisfaction of the 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 that the facts presented by the Applicants 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, the Referral is manifestly ill-founded and thus inadmissible.

46. In all, the Referral is inadmissible, because the Applicant Stamenkovic­J ankovic J asmina has not exhausted all legal remedies provided by law and the other Applicants have not substantiated their 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, unanimously

DECIDES

1. TO DECLARE the Referral Inadmissible;

II . To notify this decision to the parties and to publish this decision in the Official Gazette, in accordance with Article 20 paragraph 4 of the Law; and

III . This Decision is effective immediately.

Judge Rapporteur

Almiro Rodrigues

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