Constitutional Court

KI94/19, Applicant, Sadik Abazi, Constitutional Review of the Judgment PML. no. 39/2019 of the Supreme Court of Kosovo, of 7 March 2019, and the Resolution PN. no. 817/16 of the Court of Appeal of Kosovo, of 30 November 2016

KI94/19, Resolution on Inadmissibility, of 10 September 2019, published on 04 October 2019

Keywords: individual referral, criminal offense, repetition of proceedings, counting of detention, referral out of time, ratione materiae

In regard to the Applicant’s case, three proceedings have been conducted: a) the proceedings by which he was found guilty of the criminal offense of aggravated murder, in connection with which proceedings the Court had rendered the Resolution on Inadmissibility KI06/15, of 14 July 2016 and which is not contested by the Applicant in this case; b) the proceedings concerning the counting of detention on remand and house arrest in the sentence served that had ended with the Resolution [PN. no. 817/16] of the Court of Appeal, of 30 November 2016; and c) the proceedings for review of criminal proceedings in connection with Resolution [PN. no. 817/16] of the Court of Appeal of 30 November 2016.

The Applicant in the Court challenged proceedings b) and c).

The Applicant alleged that, in relation to his case, the regular courts had violated his rights guaranteed by Articles: 3 [Equality Before the Law], 7 [Values], 16 [Supremacy of the Constitution], 21 [General Principles], 22 [Direct Applicability of International Agreements and Instruments], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 54 [ Judicial Protection of Rights] and 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution and the provisions of the Criminal Procedure Code of the Republic of Kosovo (hereinafter: CPCRK).

Having reviewed his case, the Court, pursuant to Articles 20 and 49 of the Law and Rule 39 (1) (c) and (3) (b) of the Rules of Procedure, found that the Applicant’s Referral: (i) regarding the counting of detention on remand and house arrest in the sentence served that had ended with the Resolution [PN. no. 817/16] of the Court of Appeal, of 30 November 2016, respectively the time between the date of receipt of the challenged Resolution and the date of submission of his Referral for constitutional review of the challenged Resolution in the Court, namely 11 June 2019, the deadline of 4 (four) months had expired and consequently the Court found that this Referral had been filed outside the 4 (four) month period; and, (ii) as to the Applicant’s allegation regarding the review of criminal proceedings, the Court recalls the case law of the ECtHR which states that Article 6 of the ECHR does not apply to proceedings for the review of a case because a person whose decision has become final and who requests a review of his case has not been “charged with a criminal offense” within the meaning of that article, and is consequently not a ratione materiae pursuant to the Constitution.