The Supreme Court has upheld as well-founded the lawsuit filed by the plaintiff E.Sh. against the Ministry of Finance, Labour and Transfers – Department of Pensions, and has declared unlawful and annulled Article 4, paragraph 2 of the Administrative Instruction on procedures for notification, suspension from payment, and recovery of funds in cases of pension misuse.

Likewise, Article 5, paragraphs 1, 2, 3, and 4 of this Administrative Instruction have been declared unlawful and annulled, reports KosovaPress.

The plaintiff E.Sh. filed a lawsuit seeking the annulment of the normative sub-legal act – Administrative Instruction No. 05/2015 (MLSW) on procedures for notification, suspension from payment, and recovery of funds in cases of pension misuse.

After reviewing the case, the Supreme Court found that the paragraphs which provide for consequences for pensioners, such as the suspension of pensions, are not in harmony with the law and, as such, are unlawful.

If a pensioner does not report as required, the Ministry is obliged to monitor existing sources of information in order to identify pensioners who have died.

This provision creates an obligation for the Ministry to utilize every administrative mechanism and every official source of information before undertaking restrictive measures against the pensioner. The law has provided for a mechanism based on active verification by the Ministry, rather than placing a disproportionate burden on the pensioner.

The Constitution of Kosovo stipulates that sub-legal acts are valid only as long as they are in compliance with the law, whereas such sub-legal regulation, which materially affects citizens’ rights—such as pensions—may be enacted only by law and not by a sub-legal act.

The Ministry’s competence is limited solely to regulating the technical manner of suspension from payment, and in no way to creating obligations, deadlines, or material consequences not provided for by law.

The Law on Pension Schemes contains no provision granting the Ministry authority to establish material deadlines, impose loss of pensions, or change the status of beneficiaries in cases of non-notification.

The suspension of pension payments must be a measure of last resort, not the first. For this reason, the Supreme Court finds that the provisions of Administrative Instruction No. 05/2015, which treat non-notification as a mandatory ground for suspension and accompany it with irreversible material consequences, are unlawful, reports KosovaPress.

Decision link:
https://supreme.gjyqesori-rks.org/wp-content/uploads/verdicts/SUP__16_25_SQ.pdf