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28.2.2008

The Ombudsperson Institution issues a report regarding the length of appeals proceedings

On 27 February 2008, Ombudsperson Institution issued a report regarding the length of appeals proceedings in case of Ismet Istogu before the District Court in Prishtinë/Priština in a case involving a labour dispute against the Directorate of Geodesy, Cadastre and Property were complainant had been working till 1995.
In 1999, the complainant returned to his previous work place. In 2001, the Directorate of Geodesy, Cadastre and Property advertised an internal employment competition, in which complainant applied but the position was filled with a female candidate with justification that female candidates female candidates should be given priority. After the complainant submitted an appeal to the defendant’s Chief Executive Officer, he filed a lawsuit with the Municipal Court. In 2002, the case file was sent to the District Court.
In 2005, the District Court formed a panel of three judges to deal with the complainant’s case. On the same day, this panel remanded the case to the Municipal Court on the grounds that the Municipal Court, in issuing the judgment, had committed substantial breaches of substantive and procedural law of the Code of Civil Procedure. The District Court noted that the complainant’s lawsuit did not indicate clearly whether the complainant had requested the court to annul the decision of 2001 or whether he had asked that the announcement be cancelled. Therefore, the District Court asked the Municipal Court to order the complainant to specify his complaint. Later on, the Municipal Court issued a judgment in favor of the complainant, but the defendant appealed against this judgment and the case is still pending before the District Court.
According to investigation conducted on this case, the Ombudsperson observes that the complexity of the instant case was not so much at issue in the appeals proceedings under consideration since during those proceedings, the District Court had not reviewed the merits of the case, focusing instead on the formalities of the complainant’s claim. However, the formal aspects of the case also do not appear to have been complex.
Also, the information at the Ombudsperson’s disposal shows there is nothing to suggest that the complainant or the defendant contributed in any way to the three-and-a-half year delay in proceedings before the District Court.
With respect to the conduct of the judicial authorities, the Ombudsperson notes that according to the case law of the European Court on Human Rights, labour disputes generally require particular diligence on the part of the competent courts.
Even if in his letters, the President of the District Court argued that the reason for the delay was the small number of judges and the large number of cases pending before the court, the Ombudsperson notes that the European Court of Human Rights has confirmed that the backlog of cases in itself is not a reasonable justification for the delay in proceedings, as public authorities are obligated to organise legal systems in such a way so as to permit courts to process claims efficiently.
When applying the above principle to the case in instance, the Ombudsperson recalls that, after 1999, the Kosovo judicial system was reorganised by UNMIK. While it is clear that this process took time, the Ombudsperson notes that since 1999 many courts in Kosovo have been complaining that they do not have sufficient judges to deal with an ever-growing backlog of cases. Hence this problem clearly cannot be considered a temporary situation, nor has any adequate and prompt remedial action been taken to improve this situation.
The Acting Ombudsperson notes that the case was and is of particular importance to the complainant as he still has interest in the area of employment.
Based on the above considerations, the Acting Ombudsperson concludes that there has been a violation of the complainant’s right to a fair hearing within a reasonable time guaranteed under the European Convention on Human Rights. Therefore, the Acting Ombudsperson recommends to the President of the District Court to take urgent steps to issue a new judgment in the complainant’s case without further delay, bearing in mind that the complainant’s case has been pending for almost six years.
Further to this, the Acting Ombudsperson recommends that the Assembly of Kosovo should, without undue delay initiate discussions with all competent organs and institutions in Kosovo on the drafting of a legal instrument that would constitute an effective remedy in the sense of Article 13 of the European Convention on Human Rights providing both preventive and compensatory relief with respect to complaints about the excessive length of proceedings in civil cases.
The Acting Ombudsperson recommends that the President of the KJC shall, without undue delay expedite the implementation and peruse the progress of the property strategy of the working group and initiate discussions on similar strategies to deal with labour disputes as well as other civil disputes in general with a view to improving the case backlog, initiate discussions on a new strategy for appointing more judges, initiate discussions on how to improve case management in all courts in Kosovo.
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