Constitutional Court

KI50/18 Applicant: Ðeljalj Kazagić, constitutional review of Decision Pml. No. 110/2017 of the Supreme Court of the Republic of Kosovo, of 13 November 2017

KI50/18 Resolution on Inadmissibility, rendered on 16 January 2019, published on xx 2019

Keywords: individual referral, criminal procedure, right to fair trial, the rights of the accused, ratione materiae, inadmissible referral

The Applicant alleged that the regular courts, by rejecting his requests for reopening of the criminal proceedings, violated Article 30 [Rights of the Accused], paragraph (3) of the Constitution, because of the denial of the right to provide protection and the possibility to challenge witness statements and evidence against him, and violation of Article 31 [Right to Fair and Impartial Trial] paragraph (1) and (2) of the Constitution, claiming that he was prevented from participating in the session of the Court of Appeals.

The Court after assessing the case as a whole, concluded that Article 6 of the Convention does not apply to proceedings for the reopening of a case because a person whose sentence has become final and who applies for his case to be reopened, and during this proceeding (reopening) is not „charged with a criminal offence“ within the meaning of Article 6 of the Convention. For this reason, the Court considered that the Applicant’s allegations pertaining to the rejection by the regular courts of his request for reopening  of the criminal proceedings as such are incompatible ratione materiae with the Constitution, because Article 31 of the Constitution, in conjunction with Article 6 of the Convention do not apply. Therefore, the Court concludes that the Applicant’s Referral, in accordance with Rule 39 (3) (b) of the Rules of Procedure, is inadmissible.