Constitutional Court

KI76/20, Applicant: Kujtim Zarari, Constitutional review of Decision AD. No. 01/2020 of the Basic Prosecution in Gjakova, of 5 February 2020, and Notification AD. No. 03/2020 of the Office of Chief State Prosecutor, of 25 February 2020 

KI76/20, Resolution on inadmissibility, of 22 July 2020, published on 07 September 2020

Keywords: Individual referral, disciplinary procedure against the prosecutor, right to legal remedies, manifestly ill-founded referral

The Applicant submitted two Referrals to the Constitutional Court, namely Referral KI 77/20, as well as the current Referral KI 76/20. In these two Referrals, the Applicant challenges various decisions and procedures, of criminal and disciplinary nature, but which are interrelated. Subject of Referral, KI 76/20, was the disciplinary procedure initiated by the Ombudsperson, by letter no. 2265/2019, where he submitted the “notice-submission of a disciplinary character” to the Basic Prosecution, according to the complaint of the Applicant against the state prosecutor B.K. In this letter it was alleged that the prosecutor in question, in relation to the indictment for which the above-mentioned criminal procedure was conducted, has committed a disciplinary violation and that regarding the legal qualification of the offense for which the person M.Gj. was accused. This is because the indictment against the person M.Gj., does not reflect the allegations of the Applicant as an injured party, that the person M.Gj., with his actions has consumed the criminal offense “Attacking official persons performing official duties”, according to Article 410 of the CCRK, having in mind that both the Applicant and the person M.Gj., are official persons and employees in the same institution.

The Basic Prosecution, namely the Deputy Chief Prosecutor of this Prosecution, by Decision AD. No. 01/2020, assessing the allegations of the Applicant and the position of the State Prosecutor B.K., concluded that in the present case “we are not dealing with any disciplinary violations” provided by Law No. 06/L-057 on Disciplinary Liability of Judges and, therefore, did not refer the case for initiating investigations in the Kosovo Prosecutorial Council (hereinafter: KPC).

Whereas following the Applicant’s complaint, the State Prosecution, by Notification AD. No. 03/2020, notified the Applicant that according to Article 15 paragraph 1 of the Law on Disciplinary Liability, there is no legal possibility for the Applicant in this case to file an appeal against the decisions of the Chief Prosecutor of the Basic Prosecution, but the right to appeal is recognized only to the party  against the KPC disciplinary decisions. Thus, in this case since we are not dealing with a disciplinary decision taken by the KPC, but we are dealing with a decision taken on behalf of the legal competencies of the Chief Prosecutor of the Basic Prosecution, the appeal against Decision AD. No. 01/2020 was not allowed.

The Applicant alleged before the Constitutional Court that the Chief Prosecutor of the Basic Prosecution has no obligation to request the KPC to initiate investigations against prosecutors only if he finds that the Referral is “evidently unfounded” or “frivolous”. But, according to him, in this case, since the Deputy Chief Prosecutor of the Basic Prosecution did not reject the case as evidently unfounded or frivolous, according to Article 12 of the Law on Disciplinary Liability of Judges and Prosecutors, there was an obligation to request the KPC to start investigations regarding disciplinary violations by prosecutor B.K. Therefore, he alleges that he was denied the right to legal remedies guaranteed by Article 32 of the Constitution, as the Deputy Chief Prosecutor, contrary to the Law on Disciplinary Liability, did not request the KPC to initiate disciplinary investigations against prosecutor B.K.

The Court, after assessing the facts of the case, the right to legal remedies guaranteed by the Constitution and interpreted through its case law and the case law of the ECtHR, as well as taking into account Law No. 06/L-057 on Disciplinary Liability of Judges, found that the Applicant did not substantiate the allegations that the proceedings conducted in the Basic Prosecution of Gjakova and the Chief State Prosecutor, caused in any way, a violation of his right to legal remedies, guaranteed by Article 32 of the Constitution.