Constitutional Court

The applicant filed a Referral pursuant to Article 113,7 of the Constitution of Kosovo challenging the Supreme Court Judgment, Pkl, No, 70/2012, of 22 June 2012, because the Supreme Court without any firm reasoning did not examine the evidence proposed by the defense, Furthermore, the Applicant requested interim measures because “If a favourable judgment of the Constitutional Court would cause possible retrial of the case, where the Applicant would be acquitted of responsibility, then the absence of such an interim measure would subject the Applicant to serving an unlawful and undeserved sentence,” On the issue of the admissibility of the Referral, the Court held, based upon the plain language of Article 113,7 that the referral was admissible because in the present Referral Mr, Bajrush Xhemajli contests the constitutionality of Decision Pkl, no, 70/2012 of the Supreme Court, dated 22 June 2012, Therefore, the Applicant must be considered as an authorized party, entitled to refer this case to the Court and to have exhausted all legal remedies as provided by law, pursuant to Article 113,7 of the Constitution, As to the requirement of Article 49 of the Law that the Applicant must have submitted the Referral within a period of four (4) months, the Court determines from the submissions of the Applicant that the Applicant was served with the above Decision of the Supreme Court on 26 July 2012, while the Applicant submitted the Referral to the Court on 23 August 2012, i,e, within the four months time limit as provided by Article 49 of the Law, Further, the Applicant has set out in detail what rights under the Constitution and the ECHR have allegedly been violated and by what public authority, Hence, the Court also finds that the Applicant has fulfilled the requirement of Article 48 of the Law, On the merits of the Referral, the Court held that the manner in which the evidence was handled in the Applicant’s case demonstrates a complex of decisions which are mutually reinforcing in their impact on the fairness of the Applicant’s trial, Firstly, the regular courts consistently refused to authorize a supplemental expertise into contributory factors in the accident, Secondly, the regular courts justified this refusal on the basis that the situation was sufficiently clear to them on the basis of the existing expert report, However, the expert report in question was based on the police report, sketches and photographs, without the expert proceeding to verify by his own, individual efforts any of the information contained in the police reports, The validity of the police reports also were not corroborated at any stage of the proceedings by an authorized judicial official or court, It is questionable to what extent the Applicant was ever in any position to challenge the contents of the police reports themselves, even if he was able to challenge the expert report based on these police reports, In the light of these deficiencies in the handling of the evidence in the Applicant’s case, the Court finds that, when viewing the fairness of the criminal proceedings in the Applicant’s case as a whole, that it cannot be said that he has benefitted from a ‘fair trial’ within the meaning of Article 6 ECHR and Article 31 of the Constitution, The Curt declared null and void the decision of the Supreme Court of Kosovo and remanded the decision to the Supreme Court for reconsideration in conformity with the judgment of this Court