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.

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 (

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;

"

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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