Constitutional Court

KI19/19 and KI20/19, Applicant: Muhamet Thaqi and Egzon Keka, Constitutional review of Decision Pml. nr. 259/2018, of the Supreme Court, of 5 November 2018 and Judgment PA1. nr. 748/2018 of the Court of Appeals, of 13 August 2018

KI19/19 and KI20/19, Decision 29 July 2019, published on 28 August 2019

Keyword: individual referral, manifestly ill founded referral, referral submitted out of time

The Applicants submitted the Rreferral before the Court requesting constitutional review of Decision Pml. nr. 259/2018, of the Supreme Court, of 5 November 2018, and Judgment PA1. nr. 748/2018 of the Court of Appeals, of 13 August 2018.

By the Judgment [P.nr.62/2014] of Basic Court, the Applicants were found guilty for the commission of the criminal act and they were sentenced with a fine and conditional prison sentence. The State Prosecutor filed an appeal with the Court of Appeals, requesting for the sentence to be increased, taking into account the fact that the same perpetrators had been previously punished with three other Judgments. Subsequently, the Court of Appeals, in its Judgment [PA1.nr.748/2018] of 13 August 2018, modified the first instance Judgment in relation to the sentence, thus imposing on Applicants a sentence of imprisonment in duration of 12 months, without summoning them to a session. Hence, the Applicants, against the Judgment of the Court of Appeals, filed a request for protection of legality before the Supreme Court, and this request was declared inadmissible.

The Applicants, in elaboration of their allegations before the Court, stated that their rights and fundamental freedoms guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR were violated, for two reasons: (i) The Decision of the Supreme Court, according to them, was erroneous because they were the ones who signed the request for protection of legality, while the submission was made and stamped by the person who compiled the submission, namely the lawyer, but it was not filed by the latter, as the same submission was filed by the Applicants themselves; and (ii) the Court of Appeals rendered the respective Judgment where the sentence which was already determined by the Basic Court was increased for them, namely from the conditional imprisonment to an imprisonment in duration of 12 months, and they were not summoned to the hearing session.

The Court, referring to the allegation of the Applicants, decided on their Referrals, as follows:

In relation to the Decision [Pml.nr.259/2018] of the Supreme Court, of 5 November 2018, the Court emphasized that the Supreme Court reasoned why the request for protection of the legality was declared inadmissible based on the provisions of the Law on Criminal Procedure of the Republic of Kosovo, moreover, the allegations in relation to the erroneous interpretation of the Law do not fall under the jurisdiction of the Court. Therefore, the Court concluded that the Applicants did not support their allegation that the relevant proceedings before the Supreme Court were in any way unfair or arbitrary.

As to the allegations in relation to the Judgment [PA1.nr.748/2018] of the Court of Appeals, of 13 Augusta 2018, namely the allegation of the Applicants that they were not summoned to a session, the Court found, based on the case file, that the Referral of the Applicants against this Judgment before the Court was submitted on 1 February 2019, and therefore, out of the 4 (four) months deadline, prescribed by the Law and the Rules of Procedure.