Constitutional Court

KI14/18, Applicant, Hysen Kamberi, Constitutional Review of the Judgment of the Supreme Court of Kosovo, PML.No.241/2017, of 5 December 2017 

KI14/18, Judgment of 15 January 2020, published on 3 February 2020

Keywords: individual request, right to a fair and impartial trial, examination of witnesses, admissible request, violation of constitutional rights

The essence of the present case relates to the inability of the accused, namely the Applicant and/or his defense, to question the witnesses against him, at any stage of the criminal proceedings, despite the guarantee of such a right established by paragraph 4 of Article 31 of the Constitution in conjunction with item d of paragraph 3 of Article 6 of the European Convention on Human Rights. The circumstances of the present case involve a criminal process against the Applicant regarding the criminal offense of trafficking in human beings, for which the Applicant was initially found guilty by a decision of the District Court, sentenced to 3 (three) ) years of imprisonment, a decision which, through the Supreme Court, was returned for retrial. In the new trial, the Applicant was again found guilty of the same criminal offense, being sentenced to 2 (two) years of imprisonment, by a Judgment of the Basic Court of 2016, and which was subsequently upheld by the Court of Appeals and the Supreme Court in 2017.

The guilt of the accused was established through the statements read by 4 (four) injured/witnesses and another witness, witnesses who, the accused and/or his defense were not able to examine at any stage of the proceedings. The regular courts also referred to the testimony of another accused, namely the accused S.R given at the court hearing, noting that their decisions were “partially” based on the testimony of the latter as well.

In order to assess whether a trial which was conducted without the presence of witnesses at the court hearing but was based solely on the reading of the statements of the latter, in its entirety, was fair, the Court elaborated the general principles of the case law of the European Court of Human Rights regarding the absence of witnesses in the court hearing. In this respect, the Court also elaborated on the general principles of the European Court of Human Rights recognized through the Al-Khawaja and Tahery test, under which, in such circumstances, the following three issues must be addressed: (i) whether there were reasonable grounds for the non-attendance of the witness at the court hearing and, consequently, the admission of extrajudicial testimonies of the witnesses in absentia as evidence in the court; (ii) whether the testimony of the absent witness is the “sole” or “decisive” basis for the conviction of the accused; and (iii) whether there is “sufficient counterbalancing factor”, including strong procedural safeguards, to compensate for the disadvantage of the defense as a result of the admission of extrajudicial evidence. The Court also elaborated and clarified the report and the order of examination of the above three issues based on the relevant case law of the European Court of Human Rights, and then applied these principles, supported also by the relevant case law, in the circumstances of the present case.

Regarding the first criterion of the test, the Court, based on the case law of the European Court of Human Rights, stated that the reasons which resulted in the non-attendance of a witness at the court hearing must be consistent and that the assessment of this consistency is preliminary question, and consequently is the first issue to be considered by a court. In this regard, in the circumstances of the present case, the Court held that there is no consistent reason for the non-attendance of the witnesses  at the court hearing, and that therefore, only the reading of the statements given previously, based on the reasoning that the witnesses “are not found in Kosovo” and “their location is not known”, based on the case law of the European Court of Human Rights, and as elaborated in detail  in this Judgment, does not meet the criteria established through the case law of the European Court of Human Rights, and consequently, the first criterion of the Al-Khawaja and Tahery test was not fulfilled in the circumstances of the case.

Regarding the second criterion of the aforementioned test, namely whether the testimony of the absent witness is “sole” or “decisive” basis for the conviction of the accused, the Court held that the evidence of the witnesses who did not attend the court hearing, is the “sole”, “decisive” evidence and “carry significant weight” in the conviction of the accused, namely the Applicant, especially given the fact that other evidence at a court trial, in particular that of accused S.R., and which, based on the courts’ decisions only “partially” influenced their decisions, not carrying “incriminating” weight. The Court also clarified that, in addition to the case law of the European Court of Human Rights, even the procedural codes of the Republic of Kosovo, and applied in the circumstances of the present case, do not enable the conviction of an accused based on decisive evidence and which cannot be challenged by the defendant or his defense counsel at any stage of the criminal proceedings. Moreover, the regular courts had never addressed or reasoned this issue in their decisions. Therefore, even the second criterion of the Al-Khawaja and Tahery test has not been met in the circumstances of the case.

Finally, and regarding the third criterion of the test, namely the existence of “sufficient counterbalancing factors”, the Court clarified that the regular courts had neither taken nor applied any alternative measures to ensure the additional credibility of the evidence/statements read by the injured/witnesses in their absence at the court hearing, and that they also did not in any way clarify the relationship between the testimonies of the absent witnesses and other incriminating evidence, and furthermore did not take any procedural measures, including additional reasoning, which could have compensate the disadvantage created for the accused, namely the Applicant, being unable to directly examine the witnesses against him. Accordingly, even the third criterion of the Al-Khawaja and Tahery test has not been met in the circumstances of the case.

In this respect, the Court clarified that in the circumstances of the present case, the Judgment [PML. No. 241/2017] of 5 December 2017 of the Supreme Court in conjunction with Judgment [PAKR. No. 55/2017] of 13 July 2017 of the Court of Appeals and Judgment [P. No. 162/2004 PR1] of 2 December 2016 of the Basic Court, were rendered contrary to the procedural safeguards guaranteed by paragraph 4 of Article 31 of the Constitution in conjunction with item d of paragraph 3 of Article 6 of the European Convention on Human Rights and the relevant case law of the European Court of Human Rights, because despite these guarantees, the witnesses against the accused, namely the Applicant, did not attend the court hearing and the Applicant and/or his defense, at no stage of the criminal proceedings, were able to examine the witnesses against him, moreover, the decisions of the regular courts, in the circumstances of the present case, fail to meet all three criteria of the test known as Al-Khawaja and Tahery.