Constitutional Court

KI168/18, Applicant: Gazmend Jakupi, Referral for Constitutional Review of the Judgment PML. no. 152/2018, of the Supreme Court dated 16 July 2018

KI168/18, Resolution on Inadmissibility dated 14 May 2019, published on 7 June 2019

Key words: individual referral, Resolution on Inadmissibility, ratione materiae

The Applicant challenges the decision PML. No. 152/2018 of the Supreme Court dated 16 July 2018, rejecting his claim for protection of legality filed against the decision PN. No. 145/2018 of the Court of Appeals dated 21 February 2018.

The Applicant first of all alleges that at the moment of the commission of the criminal offence, for which he was sentenced by a final court decision, “he has been in a state of mental disability or in a condition with significantly diminished mental capacity”

The Applicant also claims that by having to go through an investigation and court procedure in suchlike state of mental disability or in condition of significantly diminished mental capacity, he personally and directly became a victim of violation of rights, guaranteed by the Constitution, by the public authorities – the courts of the Republic of Kosovo.

The Applicant considers that such proceedings have violated his rights and freedoms guaranteed by Article 30 [Rights of the Accused], Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 (Right to a Fair Trial) of the ECHR.

The Court notes that the Applicant alleges that the regular courts have rejected his request for repetition of the criminal proceedings, without taking into account the fact that at the time of the commission of the criminal offence for which he was in 2014 sentenced by a final judgment of the Basic Court P. KR. no. 155/14, “he has, in fact, been in a mental state when he was not able to judge”.

The Court notes that the regular courts have decided on the Applicant’s request for repetition of criminal proceedings exclusively based on the fulfilment of the procedural conditions for repetition of the criminal proceedings and not on the merits of the case.

In addition, the Court recalls the jurisprudence of the ECtHR, which provides that Article 6 of the ECHR does not apply to the procedure of the case repetition, because the person whose sentence has become final, and who files a request for repetition of his case, is not “charged with a criminal offence” within the meaning of Article 6 (see ECtHR case, Franz Fischer v. Austria, No. 27569/02 of 6 May 2003).

Therefore, the Court considers that the Applicant’s referral concerning the refusal of regular courts to repeat criminal proceedings is not ratione materiae, in accordance with Article 31 of the Constitution in conjunction with Article 6 of the ECHR.