Constitutional Court

KO197/19, Applicants: Judges of the Serious Crimes Department, the Basic Court in Prishtina, Constitutional review  of Article 42, paragraph 4 of Law No. 06/L-054 on Courts

KO197/19, Resolution rendered on 22 January 2020, published on 19 February 2020 

Keywords: institutional referral, incidental control, authorized party

The Referral was submitted by the Judges of the Basic Court in Prishtina, the Serious Crimes Department, in accordance with Article 113.8 of the Constitution. The Applicants request the Constitutional Court to assess the constitutionality of Article 42, paragraph 4 of Law No. 06/L-054 on Courts (hereinafter: Law on Courts), which allegedly is in violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution), in conjunction with Article 6 of the European Convention on Human Rights (hereinafter: the ECHR).

The essence of the Applicants’ Referral consists of the allegation that Article 42, paragraph 4 of the Law on Courts, stipulating that cases falling within the jurisdiction of the Special Department but for which an initial hearing has been held will continue to be processed in the respective courts, namely within the Serious Crimes Department, whereas cases of the same nature but for which the court hearing has not been initiated will be dealt with within the Special Department, violates the principle of a trial within a reasonable time, as an integral part of the right to a fair trial guaranteed by Article 31 of the Constitution, in conjunction with Article 6 of the ECHR.

The Court initially examined whether the Referral fulfills the admissibility requirements established in the Constitution, and further specified in the Law on the Constitutional Court and the Rules of Procedure of the Court. Therefore, the Court first assessed whether the Applicants are authorized parties to file such a Referral, namely, whether the Referral was submitted by a “court” as set out in paragraph 8 of Article 113 of the Constitution. The Court considered that the Referral submitted by the Applicants, in their capacity of Judges of the Serious Crimes Department of the Basic Court, cannot be regarded as a Referral filed by a “court” that has the case under consideration, as stipulated in Article 113, paragraph 8 of the Constitution.

In conclusion, the Court finds that the Applicants are not authorized parties to file the Referral with the Court and, therefore, the Referral is inadmissible.