Constitutional Court

KI52/18, Applicant: Zoran Stanišić Constitutional review of Judgment Pa. No. 1160/2017 of the Court of Appeals of 18 December 2017.

KI52/18, Resolution on inadmissibility of 16  January 2019, published on 27.02.2019

Key words: individual referral, a subsidiary plaintiff ratione materiae, non exhausted

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

The  subject matter is the constitutional review of the challenged Judgment, which allegedly violated the Applicant’s rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial], Article 32 [Right to Legal Remedies] and Article 54 [Judicial Protection of Rights] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution) and Article 6 [Right to a fair trial] and Article 13 (Right to an effective remedy) of the European Convention on Human Rights (hereinafter: the ECHR).

The Applicant further states that by such an instrumentalized action of the court and other state authorities, were violated: a) the right to access to the court, b) the right to a reasoned decision, c) the principle of equality of parties to the proceedings, d) the right to a trial within a reasonable time. In support of his allegations, the Applicant cited several cases of the ECtHR case law and the case law of this Court.

In this regard, the Court refers to the practice of the European Commission on Human Rights (hereinafter: the Commission), according to which the Convention does not guarantee the right to pursue criminal proceedings against third persons, moreover Article 6 of the ECHR does  not apply to proceedings aimed at instituting criminal proceedings against third persons (see, Decision of Commission Istvánné RÉKÁSI v. Hungary, Application no. 31506/96, of 25 November 1996).

The Court, in addition to the judgment cited Perez v. France of ECtHR, also refers to its case law in case KI97/14, Velibor Jokić, Resolution on Inadmissibility, concluding that „the ECHR does not provide a right to have a third party prosecuted or sentenced for a crime. The Constitution also does not confer such a right“. (see, Resolution on Inadmissibility in case KI97/14, Velibor Jokić, 8 December 2015, para. 38).

The Court considers that the Applicant’s complaint concerning the criminal proceedings against the third party, in this case S.P. does not fall within the scope of the right to a fair trial under Article 31 of the Constitution and Article 6 paragraph 1 of the ECHR, and therefore, the Applicant’s Referral is incompatible ratione materiae with the Constitution.

The Applicant also raised in the Referral the issue concerning the material and non-material compensation.

Having in mind that the Applicant did not specify in the Referral whether, in order to realize his claim, he used the legal remedies available to him, the Court finds that the Applicant has not exhausted all legal remedies foreseen by law.