Constitutional Court

KI17/18 Applicant: NdueLekaj, constitutional review of Decision Pml. No. 155/2017 of the Supreme Court of Kosovo of 11 October 2017, Judgment AP. No. 506/2008 of the Supreme Court of Kosovo of 15 April 2009, and Judgment  P. No. 75/2001 of the District Court in Peja, of 4 April 2008.

KI17/18, Resolution on Inadmissibility of 16 May 2018, published on 19 June 2018

Keywords: individual referral, constitutional review of the judgment of the Supreme Court of Kosovo, criminal proceedings, request for interim measure, manifestly ill-founded

The Referral is based on Article 113.7 of the Constitution, Article 47 of the Law on the Constitutional Court of the Republic of Kosovo No. 03/L-121 and Rule 29 of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo.

The Applicant alleges a violation of the rights guaranteed by Articles 22 [Direct Applicability of International Agreements and Instruments], 31 [Right to Fair and Impartial Trial] and 53 [Interpretation of Human Rights Provisions] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution), as well as Article 6 paragraph 1 (Right to a fair trial) and Article 5 (Right to liberty and security) of the European Convention on Human Rights (hereinafter: the ECHR).

The Applicant further considers that in its entirety, the court proceedings conducted before the District Court in Peja and the Supreme Court, in both the procedural and substantive aspects, were unfair as his right to defend himself before the courts in person and through an attorney was violated.

The Applicant alleges that as a result of the non-observance of the investigative and court proceedings, and by holding a trial in the absence of the accused without the presence of defense counsel authorized by him,  there has been a violation of his constitutional rights guaranteed by Articles 22 [Direct Applicability of International Agreements and Instruments], 31 [Right to Fair and Impartial Trial] and 53 [Interpretation of Human Rights Provisions] of the Constitution, as well as Article 6, paragraph 1, (Right to a fair trial) and Article 5 (Right to liberty and security) of the ECHR.

The Court found that in the present proceedings, which began on 21 August 2000 and ended on 15 April 2009, the Applicant’s criminal liability was determined. However, the Court will not deal with determining the merits of the Applicant’s allegations that the regular courts in this part of the proceedings violated his rights and freedoms guaranteed by the Constitution and the ECHR, since the legal provisions prescribed by Article 49 of the Law, as well as Rule 36.1. c of the Rules of Procedure have not been met.

On 22 June 2017, the Applicant submitted to the Supreme Court a request for protection of legality in which he requested a repetition of proceedings in order to reestablish his criminal liability.

The Court also noted that on 11 October 2017, the Supreme Court rendered Judgment Pml. No. 155/2017, which rejected the request for protection of legality as out of time, while giving a clear and legal reasoning, which reads “during the entire criminal proceedings the applicant had a defence [… ] to whom the judgment was served on 10.06.2009 […] the applicant submitted the request for protection of legality on 22.06.2017, that is, more than 8 years after the receipt of the judgment.“

Therefore, it follows that in this proceedings the Supreme Court was not concerned with the determination of the Applicant’s guilt or innocence, but dealt exclusively with the procedural issue concerning the deadlines, whereby it concluded that the request for protection of legality was submitted by the Applicant out of the legally prescribed deadline.

Therefore, the Court concluded that the Applicant’s Referral is manifestly ill-founded on constitutional basis and is to be declared inadmissible in accordance with Rule 36 (1) (c), (d) and (2) (b) of the Rules of Procedure.

The Court also rejected the request for the imposition of the interim measure of the Applicant as ungrounded.