Constitutional Court

KI155/18, Applicant: Benson Buza, Request for constitutional review of Judgment Pml. No. 63/2018 of the Supreme Court of the Republic of Kosovo of 4 June 2018

KI155/18, Resolution on Inadmissibility, adopted on 25 September 2019

Keywords: individual referral, non-exhaustion of legal remedies in substantial aspect, inadmissible referral.

The subject matter of the Referral is the constitutional review of the challenged Judgment of the Supreme Court, which allegedly violates the Applicant’s fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial], Article 32 [Right to Legal Remedies], Article 33 [The Principle of Legality and Proportionality in Criminal Cases] of the Constitution, as well as the rights guaranteed by Article 6 (Right to a fair trial) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Applicant, inter alia, before the Court alleged violation of (i) the principle of legality and proportionality contrary to Article 33 of the Constitution, alleging that the criminal offense which he was charged with was provided by law which was not in force at the time of the alleged commission of the criminal offense; (ii) Article 32 of the Constitution, alleging that in substance he was not able to challenge the amended indictment; and (iii) Article 31 of the Constitution, claiming that the court hearing should have started again considering that the indictment was allegedly amended.

In this context, and with regard to the first allegation relating to the principle of legality and proportionality set out in Article 33 of the Constitution, the Court noted that the Basic Court had in fact addressed this issue by (i) re-qualifying the criminal offense which the Applicant was charged with from the one established by Article 343 of the Criminal Code of the Republic of Kosovo to the criminal offense provided by Article 270 of the Provisional Criminal Code of Kosovo, thus applying the law in force and more favorable to the circumstances of the Applicant; and (ii) by the relevant Decision, the matter was transferred from the jurisdiction of the Serious Crimes Department under the jurisdiction of the General Department of the Basic Court.

The Court further notes that the two other allegations before it relate to the allegations of violations of Articles 32 and 31 of the Constitution, namely and in essence the impossibility of using the legal remedy against the indictment, allegedly amended, and the request that the judicial process should be commenced again, were originally raised by the relevant Decision of the Basic Court, whereas the latter was not further challenged either in the Court of Appeals through the appeal, or in the Supreme Court, through the request for protection of legality. Having regard to the circumstances, in which, according to the case file, it follows that these specific allegations of the Applicant have been filed for the first time before the Court, it concludes that the Applicant did not give the opportunity to the regular courts, including the Court of Appeals and the Supreme Court, to address these allegations and on that occasion, by not meeting the constitutional criterion of the exhaustion of legal remedies,  beyond the formal aspect also in the substantial aspect.

Therefore, the Court found that the Applicant’s Referral is to be rejected as inadmissible on procedural grounds due to the substantive non-exhaustion of all legal remedies, as required by paragraph 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law and item (b) of paragraph (1) of Rule 39 of the Rules of Procedure.