Page - 279 - in Austrian Law Journal, Volume 2/2015

ALJ 2/2015 Kosovo – UNMIK accountability 279 II. Fillim Guga against UNMIK Fillim Guga introduced his complaint on November 3, 2008. He claimed to have worked for the socially owned enterprise “KNI Dukagjini OTHPB-BP IMN Tjegulltorja” (IMN) for 20 years. Around July 1, 1999, the father of the complainant went missing, which made the complainant flee to Montenegro for fear of his own security. Later his house was burned and his father was found shot dead. By decision of August 24, 2000, IMN terminated the employment of Mr. Guga for his failure to appear at work for a prolonged period without justification. When the complainant returned to Kosovo in 2001, several requests to resume work were rejected. He took court action against this decision, which was rejected on all levels, i.e. the Municipal Court, the District Court and the Supreme Court. In 2006 IMN was privatized and 20 % of the proceeds were to be distributed among the employees based on the pertinent UNMIK regulation.10 Mr. Guga, however, was not included in the list of IMN employees to receive a share of the proceeds of the privatization. Therefore, he complained to the Kosovo Trust Agency (KTA), basing his claim on Article 10.6 of UNMIK Regulation 2003/13, which contains an exception to the eligibility requirements. Accordingly, employees “who claim that they would have been so registered and employed, had they not been subject to discrimina- tion […]” shall not be precluded. Mr. Guga declared that he felt discriminated because he belonged to the Egyptian Minority in Kosovo and provided the details of his story with all documents. How- ever, KTA dismissed his claim arguing that his employment had been terminated by a decision of IMN for not showing up and that he had not provided evidence of any legal action taken against that decision. A complaint against the final list of share recipients published by KTA also was unsuccessful. On April 11, 2008, the complainant filed a petition with the Special Chamber of the Supreme Court of Kosovo, giving the same reasons but claiming in addition that ethnic Serbs who failed to appear at work after June 10, 1999, for security reasons were included in the list of eligible employees. The KTA, however, argued that there were no ethnic tensions after June 1999 as some non-Albanians returned to work and therefore it saw no reasonable grounds to presume discrimination. The Special Chamber rejected the claim as ungrounded. It also referred to Section 8 of the Anti- Discrimination Law of Kosovo.11 According to this Section complaints of discrimination have to present a prima facie case of direct or indirect discrimination, in which case the respondent is to prove the absence of discrimination. But the Chamber found that the facts submitted did not show direct or indirect discrimination. Also, an appeal against this judgment to a different panel of the Special Chamber, made possible by an amendment of UNMIK to its pertinent regulation,12 was rejected. The complaint submitted to the HRAP in November 2008, in substance, is about discrimination due to the Egyptian ethnicity of the complainant whose prima facie case had not been properly 10 See UNMIK Regulation No. 2003/13 of May 9, 2003, on the Transformation of the Right to Use to Socially-Owned Immovable Property. 11 See Law on Anti-Discrimination, (Law No. 2004/3) promulgated by UNMIK Regulation No. 2004/32 of Aug. 20, 2004, on the promulgation of the Anti-Discrimination Law adopted by the Assembly of Kosovo. 12 UNMIK Regulation No. 2008/4 of Feb. 5, 2008, amending UNMIK Regulation No. 2002/13 on the Establishment of a Special Chamber of the Supreme Court of Kosovo on Kosovo Trust Agency Related Matters.