Constitutional Court

KI71/20, Applicant, Etem Arifi, Constitutional review of Judgment Pml. No. 380/2019, of the Supreme Court of Kosovo, of 30 January 2020

KI71/20, Resolution on Inadmissibility of 23 September 2020, published on 28 October 2020

Keywords: Individual referral, right to fair and impartial trial, legal certainty,  manifestly ill-founded

The Basic Court in Prishtina, by its Judgment PKR. 740/16, found the Applicant guilty of committing, in co-perpetration the criminal offense “Subsidy fraud” under Article 336 paragraph 3 of the Criminal Code of the Republic of Kosovo (hereinafter: the CCRK) in conjunction with Article 31 of the CCRK, sentencing him to imprisonment in terms of two (2) years, provided that within a period of three (3) years he does not commit any other criminal offense. The Basic Court in Prishtina also obliged the Applicant and the other convict [B.G.] to jointly compensate the damage caused: (i) 22,900 euro – to the Ministry of Labor and Social Welfare; and (ii) 2,749 euro – to the Office of the Prime Minister. Compensation was ordered to be made in installments within a time period of six (6) months. With regard to the accusation of committing the criminal offense of “trading in influence”, under Article 431 paragraph 1 of the CCRK, the Basic Court acquitted the Applicant of charges in this point. Following the appeal of the Applicant and the Special Prosecution of the Republic of Kosovo, the Court of Appeals modified the Judgment of the Basic Court in Prishtina in the sentencing part regarding the decision on punishment and obligation regarding the legal qualification of the criminal offense, so that the Court of Appeals found that in the actions of the accused, the elements of the criminal offense of fraud in subsidies are formed, under Article 336 paragraph 3, in conjunction with paragraphs 2 and 1 of Article 31 of the CCRK and for this criminal offense sentences the Applicant with (1) year and (3) months imprisonment, while as to the acquittal part regarding the Applicant, the decision is annulled and the case is remanded to the same court for retrial. Following the Applicant’s request for protection of legality filed by the Applicant, the Supreme Court upheld the request for protection of legality, annulling the Judgment of the Court of Appeals and remanding the case to reconsideration, due to the participation of the judge who should have been excluded. The main reason on which the Supreme Court decided to approve the request for protection of legality as grounded was precisely the participation of the judge who in the procedure for confirmation of the indictment in the Court of Appeals should have been excluded

The Court of Appeals, acting on the retrial, decided the same as in its first Judgment, except for item II through which it decided that the Applicant and [B.G] are obliged to compensate the Ministry of Labor and Social Welfare in the name of the damage caused in the amount of 22,900 euro, while the Office of the Prime Minister of the Republic of Kosovo – Office for Communities in the amount of  2,749 euro, all within 3 months. Following the second request for protection of legality, filed by the Applicant, the Supreme Court rejected as ungrounded the request for protection of legality.

The Applicant alleged that the challenged decision was rendered in violation of his fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights.

In essence, the Applicant alleged before the Court that the violation of his right to a fair and impartial trial occurred as a result of: (i) violation of the principle of legal certainty (ii) lack of reasoning of the court decision; (iii) the Applicant’s absence from the hearing session in the Court of Appeals.

The Applicant also requested the imposition of an Interim Measure before the Court.

First, regarding the Applicant’s first allegation of violation of the principle of legal certainty, and which relates to his allegation of a violation of the Reformato in Peius principle by the Court of Appeals, which by Judgment PAKR. No. 328/19 of 20 August 2019, the deadline for compensation of the damage caused, is reduced from 6 months to 3 months, the Court found that this allegation was raised by the Applicant for the first time before the Court. Also regarding the allegation that the Applicant raised in the request for protection of legality before the Supreme Court, against the decisions of the lower instance courts, with the allegation that a violation of criminal law has been committed when it comes to the time of execution of the criminal offense, as an essential element of the figure of the criminal offense and erroneous application of the law, the Court found that the Supreme Court has clearly clarified this allegation of the Applicant, in the reasoning of Judgment PML. No. 380/2019 of 30 January 2020.

With regard to the allegation of not reasoning of the decision, the Court, based on its case law and that of the European Court of Human Rights, assessed that the Applicant has not proved and has not sufficiently substantiated his allegations that the proceedings before the courts were in some way unfair or arbitrary and that through the challenged Judgment the right to fair and impartial trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, has been violated.

Thirdly, regarding the Applicant’s allegation of the Applicant’s absence from the hearing in the Court of Appeals, the Court found that his Applicant’s allegation is ungrounded.

Therefore, the Court in accordance with Article 113.7 of the Constitution, Article 20 of the Law and Rules 39 (2) and 57 (5) of the Rules of Procedure decided to declare the Referral inadmissible as manifestly ill-founded on constitutional basis and to reject the request for interim measure.