Constitutional Court

KI10/18, Applicant: Fahri Deqani, Constitutional review of Judgment Pml. No. 357/2017 of the Supreme Court of Kosovo of 22 December 2017 

KI10/18, Judgment of 8 October 2019, published on 22 October 2019

Keywords: Individual referral, right to liberty and security, extension of detention pending trial, failure to reason decisions, alternative measures, admissible referral, violation of constitutional law

Following his arrest, the Applicant was placed in detention on 31 July 2010. His detention pending trial lasted until 3 September 2012, when the District Court rendered the decision, which found him guilty and sentenced him to imprisonment. The Applicant filed an appeal against the aforementioned Judgment of the District Court. The Court of Appeals upheld the Applicant’s appeal, annulling the judgment of the District Court and remanding the case to the Basic Court for retrial.

During the period between 3 September 2012 and 26 November 2013, the Applicant’s detention on remand was a detention on remand within the meaning of Article 29, paragraph 1, item 1, of the Constitution of the Republic of Kosovo (hereinafter: the Constitution) and Article 367 [Detention on Remand after Announcement of Judgment], paragraph 2 of the Criminal Procedure Code of the Republic of Kosovo. Whereas, as a result of the Judgment of the Court of Appeals, by which the case against the Applicant was remanded for retrial, the second period of detention pending trial within the meaning of Article 29, paragraph 1, item 2 of the Constitution, in conjunction with Article 5, paragraph 3, of the European Convention on Human Rights (hereinafter: the ECHR), began on 26 November 2013 and continued until the date the Judgment of the Basic Court in Ferizaj [PKR No. 155/15], of 6 April 2018, was rendered, by which the Applicant was found guilty and sentenced to effective imprisonment.

The Applicant alleged that the decisions of the regular courts on the extension of detention pending trial against the Applicant, namely, the challenged decision of the Supreme Court violated his right guaranteed by Article 29 [Right to Liberty and Security], paragraph 4, and Article 31 [Right to Fair and Impartial Trial] of the Constitution.

The Court, regarding the Applicant’s allegation of a violation of Article 29 [Right to Liberty and Security] of the Constitution, in conjunction with Article 5 (Right to liberty and security) of the ECHR, held that the reasoning of the Basic Court on the extension of detention on remand, confirmed by the Court of Appeals and the Supreme Court through the challenged Judgment, does not justify its decision to extend detention on remand to the Applicant. Therefore, the regular courts failed to provide concrete and sufficient reasoning as to why the alternative measures were not applicable in the Applicant’s case.

Accordingly, the Court held that the challenged Judgment Pml. No. 357/2017, of the Supreme Court of 22 December 2017, which rejected the Applicant’s request for protection of legality against Decision PN1. No. 2156/2017 of the Court of Appeals of 6 December 2017, and Decision PKR. No. 155/15 of the Basic Court in Ferizaj of 24 November 2017, was not in compliance with Article 29, paragraph 1, item (2) of the Constitution, in conjunction with Article 5, paragraph 3 of the ECHR..

The Court is aware of the fact that the Applicant was found guilty and sentenced to effective imprisonment through the Judgment of the Basic Court in Ferizaj [PKR. No. 155/15 of 6 April 2018], as part of the criminal proceedings conducted against him. In this regard, the Court recalls that this procedure was not the subject of review by the Court, and that only the assessment of the challenged Judgment of the Supreme Court regarding the extension of the detention pending trial against the Applicant is the subject of review.

In this regard, the Court, through this Judgment, clearly and directly conveys the request and instruction that should serve to the regular courts in order to comply with the constitutional requirements of Article 29 of the Constitution, as well as with the requirements of Article 5 of the ECHR, as widely interpreted by the ECHR in its case law, their reasoning for extension of detention pending trial must contain detailed reasoning and an individualized assessment according to the circumstances and facts of the case, explaining and proving why the detention pending trial is necessary and why other alternative measures are not appropriate for the smooth and successful conduct of the criminal proceedings.

The Court, with regard to the Applicant’s allegation concerning the length of the detention pending his conviction, found that it did not fall within the scope of Article 31 of the Constitution.