Constitutional Court

KI128/17, Applicant: Naser Husaj, Constitutional review of Judgment Rev. No. 170/2017 of the Supreme Court of Kosovo of 23 August 2017 

KI128/17, Judgment rendered on 29 July 2019, published on 28 August 2019

Keywords: individual referral, Article 31 [Right to Fair and Impartial Trial] in conjunction with Article 6 (Right to a fair trial) of the ECHR

The Applicant alleged that the Judgment [Rev. No. 170/2017] of 23 August 2017 of the Supreme Court was rendered in violation of his fundamental rights and freedoms guaranteed by Article 31 of the Constitution in conjunction with Article 6  of the ECHR, because the decision-making panel of the Supreme Court was biased due to the participation of Judge G.S., against whom the Applicant filed a criminal report in 2015 for rendering unlawful court decisions and conflict of interest, the criminal offenses foreseen by the Criminal Code of the Republic of Kosovo. The relevant criminal report according to the case file was related to another case of the Applicant, namely, Judgment [Rev. No. 335/2015] of 14 December 2015 and which thereafter, namely on 9 June 2017 was declared invalid by the Court in case No. KI22/16.

With regard to the Applicant’s allegations relating to an impartial tribunal, the Court, inter alia, elaborated (i) the general principles of the European Court of Human Rights regardinf the criteria for assessing the impartiality of a court; (ii) the concept of subjective and objective impartiality of the court; and (iii) the practice of the European Court of Human Rights in assessing the impartiality of the court, namely the concept of “legitimate doubts” and the fact that they must be “objectively justified” in order to establish the impartiality of a court.

In applying the abovementioned principles to the circumstances of the present case, the Court stated that the Judgment [Rev. No. 170/2017] of the Supreme Court of 23 August 2017 is in compliance with Article 31 [Right to Fair and Impartial Trial] of Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR, because (i) despite the fact that the President of the Panel which rendered the challenged Judgment was a judge against whom the Applicant filed a criminal report, no other evidence or argument of the Applicant invalidates the presumption of impartiality of the respective judge; and, moreover, (ii) despite the fact that the participation of the respective judge in the Panel of the Supreme Court may have raised legitimate doubts of the Applicant as to the impartiality of the court, in the Court’s assessment, these doubts, in the circumstances of the present case, are not objectively justified under the objective test of the impartiality of the court.

Therefore, the Court found that the criminal report against Judge G.S., and unsupported by other circumstances and arguments, is not sufficient to determine that Judge G.S. was biased under the subjective test and that the Panel of the Supreme Court that rendered the challenged Judgment was biased in terms of the objective test.

Finally, the Court declared the Referral admissible and held that Judgment [Rev. No. 170/2017] of 23 August 2017 of the Supreme Court is in compliance with Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR.