Constitutional Court

Cases No. KI146/17, KI147/17, KI148/17, KI149/17 and KI150/17, Applicants: Isni Thaçi, Zeqir Demaku, Fadil Demaku, Nexhat Demaku, and Jahir Demaku, Constitutional review of Judgment PML. KZZ. No. 322/2016 of the Supreme Court of Kosovo of 19 July 2017

 KI146/17, KI147/17, KI148/17, KI149/17 and KI150/17, Judgment of 30 May 2018, published on 8 June 2018

Key words: Individual referral, criminal charge, composition of the trial panel, right to a fair trial – right to a reasoned decision

 The Applicants were found guilty by the Basic Court in Mitrovica (Judgment P58/14) for committing the criminal offenses sanctioned by Article 152 [War Crimes in Serious Violation of Article 3 Common to the Geneva Conventions] in conjunction with Article 31 [Co-perpetration] of the Criminal Code of the Republic of Kosovo (CCRK). The Applicants filed an appeal against the Judgment of the Basic Court challenging, among other, the composition of the trial panel of the Basic Court and the testimonies of expert witnesses. The Court of Appeals, (Judgment PAKR No. 456/15), rejected the appeals of the parties and confirmed the Judgment of the Basic Court.  The Applicants filed a request for protection of legality-against the judgment of the Court of Appeals-with the Supreme Court of Kosovo, claiming, among others that, the trial panel of the Basic Court was composed in violation of rules applicable for assigning judges in the trial panels.

The request for protection of legality was rejected by the Supreme Court, through Judgment Pml. KZZ. No. 322/2016, as ungrounded. The Supreme Court reasoned its decision regarding the Applicants allegations for violation of the rules for assigning judges in trial panels, stating that, based on the EULEX Guidelines, the President of EULEX judges has full discretion to assign judges to the panels, regardless of any specific rules contained in the Guidelines. The Supreme Court, held that even if there has been a violation of the EULEX internal regulation then it would be a matter of discretion within the EULEX administrative/disciplinary authorities.

The Applicants alleged, before the Constitutional Court that by rejecting their request for protection of legality as ungrounded, the Supreme Court  violated their rights guaranteed by Articles, 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 (Right to a fair trial) of the European Convention on Human Rights. In this regard, they alleged that the Supreme Court did not properly address the question of assignment of judges in the trial panel of the Basic Court, because it was done in violation of the rules for assigning judges in trial panels.

In addressing the allegations of the Applicants with regard to the composition of the trial panel of the Basic Court, the Constitutional Court noted that according to the case law of the European Court of Human Rights, the right to a fair hearing includes the right to a reasoned decision.  In this regard, the Constitutional Court noted that the reasoning of the Supreme Court, when addressing the allegation of the Applicants with regard to the assigning of judges in the trial panel of the Basic Court was mainly limited to a possible violation of the CPC and did not consider other applicable norms relevant for assigning the judges in the trial panels, namely the principles provided for  by Law no. 03/l-053 on the Jurisdiction, Case Selection and Case Allocation of EULEX Judges and Prosecutors in Kosovo and the legislation deriving therefrom . The Constitutional Court also noted that, according to its case law, all judges, including the EULEX judges, have an obligation to apply laws duly adopted by the Assembly of the Republic of Kosovo and consequently, the legislation deriving therefrom.

Thus, the Constitutional Court found that, by failing to provide a thorough assessment and justification, as to whether or not the entire body of applicable legal provisions was complied with, including the principle of pre-determined objective criteria and procedural safeguards, when assigning judges in the trial panel of the Applicants’ case in the Basic Court, the Supreme Court (Judgment, PML. KZZ. No. 322/2016 of 19 July 2017), violated the Applicants’ right to a reasoned decision, and thereby violated the Applicants’ right to a fair and impartial trial as guaranteed by Article 31 of the Constitution and Article 6 of the ECHR..

Thus, in accordance with the Rule 74(1) of the Rules, the Judgment of the Supreme Court, PML. KZZ. No. 322/2016 of 19 July 2017, is declared invalid and the case is remanded to the Supreme Court for reconsideration.