The Ombudsperson of Republic of Kosovo has published today the Report regarding the lack of effective legal remedies, actually violation of human rights of disabled people related to ongoing procedures which they have to follow, but without any decision on merits and suitable legal review. This Report is based on Ex-officio case No. 425/2015, summarizing all complaints of the same nature, which in the Report are represented with case No. A. 196/16 against the Basic Court in Prishtinë and the Case No. A. 230/2016 against Pension Administration Department of Kosovo- Ministry of Labor and Social Welfare.
Based on facts and circumstances described above, the Ombudsperson considers that decisions of the commission of complaints as a second instance in all cases confirm the decisions of Medical Commission in MLSW as a first instance and provide legal advice to complainants to continue with judicial proceedings in administrative conflicts.
The Ombudsperson considers that Courts in none of their procedures considered the implementation of the material right of the issue. This deficiency is still on-going, because in administrative conflicts, courts ascertain only procedural violations in the MLSW decisions. This is viewed as an omission of courts to utilize the possibility and legal powers to review the MLSW decisions based on the merits of the case and at the same time repair violations by modifying the administrative decisions, in conformity with the Law on Administrative Conflicts
The Ombudsperson finds that Courts after deciding on cases over a two year limitation by returning the issue to the administrative body for retrial, by justifying only with procedural violations made judgements to be inefficient, since the administrative body is again issuing an opposable decision to the parties and cases are again filed with Courts. While parties are having an impression that their right is recognized according to the court’s decision, but they are soon disappointed with the court’s decision after repeated rejection from the administrative body, since their case file was sent back for revision to the administrative body and this is creating the impression of a legal insecurity and ineffective appealing remedies.
Based on these findings, and in conformity with Article 135, par. 3 of Constitution of the Republic of Kosovo, and Article 16, par. 4 of Law no. 05/L-019 on Ombudsperson, the Ombudsperson recommends that:
Ministry of Labour and Social Welfare, namely the Pension Administration Department of Kosovo, the Council of Complaints:
- To handle requests and complaints of persons with disabilities, in conformity with powers and authorizations deriving from law, based on the evidences presented for their health conditions and specifically the subsequent decisions should be in line with the court’s legal views, or in harmony with court’s remarks. They should assess the court’s judgements in order to take right decisions for parties and to avoid automatic processing of complaints based on their previous rejections.
Kosovo Judicial Council and Basic Court in Prishtina, Department for Administrative Matters:
- In conformity with powers and legal authorizations should undertake all actions necessary, other than procedural violations to decide in the administrative conflict suit also based on the merits of the case, since in many cases of decisions for procedural violations, the parties’ request has been rejected again by the administrative body
- Suits for administrative conflict in these cases should be reviewed within reasonable time and without any procedural delays, since in many cases parties have been losing their right on re-application for pension for persons with disabilities, according to law, 6 months, since the administrative body is not recognizing their application, without the case being decided by the court.
The above given Report, in its full form, has been forwarded to the responsible authorities on 22 August 2016. In compliance with Article 132, paragraph 3 of the Constitution of Republic of Kosovo and Article 28 of the Law No. 05/ L-019 on Ombudsperson, the Ombudsperson awaits to be informed in written on actions undertaken regarding this issue, within thirty days deadline.
The Report, Ex-Officio Report No. 425/2015 regarding the lack of effective legal remedies, in a form as it has been addressed to responsible authorities, is published on OI official web page (HERE). The same is distributed to media as well.
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