Constitutional Court

KI100/17, Applicant: Miftar Gashi, Constitutional review of Decision Rev. No. 352/2016 of the Supreme Court of Kosovo, of 16 March 2017

KI100/17, Resolution on Inadmissibility approved on 17 May 2018, published on 11 June 2018

Keywords: Individual referral, disciplinary proceedings, the right to a fair and impartial trial, principle of subsidiarity, inadmissible referral.

In the case at issue, the Applicant complained that courts of general jurisdiction infringed upon his rights to a fair and impartial trial because the replacing judge did not hear two witnesses that were heard by the previous judge. The Applicant also complained that his right to access a court was violated as well.

The Court noted that the Applicant has not raised before the regular courts, neither expressly nor impliedly, his claim on non-reexamination of witnesses and on the alleged violation of his right to access a court. That allegation was rejected as inadmissible due to it being raised for the first time before the Constitutional Court. The Court noted that the Applicant had the benefit of the conduct of the proceedings based on adversarial principle; that he was able to adduce in time the arguments and evidence he considered relevant to his case at the various stages of those proceedings.

The Court held that the referral, is manifestly ill-founded, on a constitutional basis, as established by Article 113 (7) of the Constitution, provided for by Article 48 of the Law and as further specified by Rule 36 (2) (d) of the Rules of Procedure.