SUMMARY
Registration number 122/01
Elife Murseli
against
The United Nations Mission in Kosovo
(UNMIK)
10 December 2001
The applicant in this case complained about the failure of the responsible governmental authorities to execute a judgment of the Municipal Court in Kacanik holding that a competition for the directorship of a pre-school in the Municipality had been unfair and calling on the authorities to re-evaluate the qualifications of the candidates who had been short-listed for the job. The judgment of 12 March 2001 became final on 10 April 2001.
The Ombudsperson found that the case fell within the purview of Article 6 of the European Convention on Human Rights, in accordance with prevailing European legal standards regarding labour and hiring disputes affecting teachers and other education professionals working within the public employment sector. The Ombudsperson further found that the execution of a final and binding judgment of a court constituted an important aspect of the right to a court guaranteed under Article 6 of the Convention. In connection with points raised by the Respondent Party during the course of the investigation, the Ombudsperson also found not only that claims of immunity could not serve to nullify fundamental human rights but that the scope of immunity established by UNMIK Regulation 2000/47 did not extend to the matters at issue in the case, a view confirmed by the domestic court in its judgment. The Ombudsperson finally found that there currently existed in Kosovo no `state of emergency' that could justify any derogation of the right to a court guaranteed under Article 6 with respect to the recruitment of education professionals by governmental authorities. The failure of UNMIK to execute the final judgment of the Municipal Court in Kacanik thus constituted a violation of the applicant's rights under Article 6 of the European Convention on Human Rights. The Ombudsperson recommended that the SRSG, no later than 31 December 2001, instruct the responsible education authority to comply with the judgment of the Kacanik Muncipal Court without further delay.
In a letter of 29 January 2002, the SRSG disavowed any responsibility of the UNMIK authorities for the recruitment process at issue in this case, on the grounds that the governmental authorities that had conducted the process did not have the competence to do so. The SRSG concluded by stating, `[W]here ... a court enters a judgment against a party incapable of performing the acts specified in the judgment, UNMIK cannot be faulted for the result'.
The Ombudsperson notes that UNMIK exercised direct control over all aspects of the recruitment process at issue in this case. All levels of governmental authorities were obliged to implement UNMIK legal acts, administrative instructions, and so forth throughout the recruitment process. The signatures of UNMIK authorities were required for the appointment of the successful candidate for the post at issue.
The Ombudsperson also notes that the position of UNMIK throughout the investigation of this case and as reflected in the above correspondence has reflected arbitrary and inconsistent conduct. At various points throughout the domestic legal proceedings, UNMIK invoked its total immunity from legal process as its grounds for refusing to participate. Well after the judgment became final, UNMIK filed a request to waive the relevant deadlines and to have the proceedings repeated, thus implying that they were waiving whatever immunity they enjoyed. However, the competent court rejected this request on the grounds that the deadline had passed. UNMIK then appealed this decision, arguing that the deadline had not expired because of the date on which they had received the judgment. The court rejected this appeal, on the grounds that the judgment had been delivered to UNMIK at an earlier date, for which the court provided official documentation.
Subsequently, the Director of Education in Kacanik issued a decision for the execution of the judgment (annulling the appointment made in contravention of the applicable labour law and calling on the recruitment panel to review the applications again, in accordance with the Municipal Court judgment). The Principal International Officer of the UNMIK Transitional Administrative Department of Education, Science and Technology, however, instructed the Director of Education in Kacanik to reinstate the candidate and not to proceed further, on the grounds that `any steps to reopen the selection procedure … fall within the competence
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