Constitutional Court

KI78/19 Applicant: Miodrag Pavic, constitutional review of Judgment Pml. no. 270/2018 of the Supreme Court of 18 December  2018

KI78 / 19, Resolution on Inadmissibility of 8 October 2019, published on 1 November 2019

Keywords: individual referral, constitutional review of the challenged judgment of the Supreme Court, manifestly ill-founded

The Referral is based on Article 113.7 of the Constitution, Article 47 of the Law on the Constitutional Court of the Republic of Kosovo no. 03 / L-121 and Rule 32 of the Rules of Procedure of the Constitutional Court.

The Applicant submitted the Referral to the Court for the second time, in the first Referral the Applicant alleged that the Court of Appeals modified the decision of the first instance without notifying him. The Applicant alleged a violation of the right to  fair trial protected by Articles 31 and 54 of the Constitution and Article 6 of the ECHR, as the Applicant, as a defendant, was not informed about the hearing of the Court of Appeals and thereby he was denied his right to present his arguments. This Referral was registered under case number KI 104/16.

In case KI 104/16, the Court concluded that by failing to summon the Applicant to be present at the hearing of the Court of Appeals in which his guilt was established, the Applicant was denied the opportunity to defend himself against the charges made against him. Consequently, the Court finds that the Applicant’s right to fair trial has been violated and, accordingly, orders the Supreme Court and the Court of Appeals to review the decisions in accordance with the Court’s recommendation.

Acting pursuant to the decision of the Constitutional Court KI104/16, the Supreme Court by Judgment PML. no. 110/2016 repeated the procedure in respect of the Applicant’s request for protection of legality, approved the Applicant’s request for protection of legality and annulled the Judgment [PA-II. no. 6/2015] of the Supreme Court of 1 December 2015 and Judgment [PAKR. no. 222/2015] of the Court of Appeals of 15 July 2015 and remanded the case to the Court of Appeals for reconsideration, by ordering the Court of Appeals to summon the Applicant to attend the hearing in the repeated proceedings.

Acting pursuant to the decision of the Supreme Court, the Court of Appeals repeated the procedure and held a hearing of the trial panel to consider the Prosecution’s appeal. The Applicant and his defense counsel were duly summoned at the hearing of the trial panel in accordance with the recommendation of the Supreme Court. On the same date, the Court of Appeals rendered its judgment [PAKR. no. 521/2017], whereby it approved the Prosecution’s appeal and modified the judgment [K. no. 82-2013] of the Basic Court of 29 January 2015. The Court of Appeals found the Applicant guilty and sentenced him to one year of imprisonment.

In this case, the Applicant alleges before the court that the Judgment  KI104/16 of Constitutional Court has not been enforced, that the second instance court was obliged to schedule a hearing and to inform the parties to the proceedings and that the regular courts violated the procedural and substantive law.

The Court notes that the Supreme Court and that of the Court of Appeals have eliminated the aforementioned procedural violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 [Right to a fair trial] of the ECHR, and has thereby respected  the Judgment KI104/16 of the Constitutional Court of the Republic of Kosovo, therefore the Court concludes that the Applicant’s allegations concerning the disregard of the Constitutional Court’s judgment are manifestly ill-founded on constitutional grounds and must be declared inadmissible.

The Court also notes that the Applicant’s allegations that the Court of Appeals in its repeated proceedings, rendered its decision without summoning the Applicant and his defense counsel are manifestly ill-founded on constitutional grounds and therefore they should be declared inadmissible.

In summary, the Court concludes that as regards the Applicant’s allegations they are  not substantiated at all by the Applicant and that the Applicant does not explain which decisive facts contain contradictions, he merely concludes that there has been an erroneous application of procedural and substantive law.

Accordingly, the Court finds that the Applicants’ Referral is manifestly ill-founded on  constitutional grounds, and must therefore be declared inadmissible in its entirety, pursuant to Rule 39 (2) of the Rules of Procedure.