Constitutional Court

KI209/19, Applicant: Memli Krasniqi, Constitutional review of Judgment Ka. No.664/2019 of the Court of Appeals of Kosovo, of 5 August 2019

KI209/19, Judgment adopted on 5 November 2020, published on 26 November 2020

Keywords: individual referral, equality of arms, right to fair and impartial trial, conflict of interest

In the circumstances of the present case, the Anti-Corruption Agency (ACA) filed a request for initiation of minor offence procedure with the Basic Court in Prishtina, on the basis of grounded suspicion that the Applicant, contrary to Article 14 paragraph 1 of Law No. 06 / L -011 on Prevention of Conflict of Interest, simultaneously exercises the functions of a Member of the Assembly of the Republic of Kosovo and of the First Vice-President of the Kosovo Olympic Committee (KOC).

The Basic Court due to the lack of evidence decided to conclude the minor offence procedure against the Applicant by suspending the procedure. Meanwhile, the ACA  filed an appeal with the Court of Appeals against the aforementioned decision of the Basic Court, reiterating that there is a suspicion that the Applicant as a senior official, has come to a situation of conflict of interest because while being a Member of the Assembly of Kosovo at the same time he is exercising the post of the first Vice-President of the KOC.

The Court of Appeals approved the appeal of the ACA and amended the Decision of the Basic Court so that the Applicant for the violation of Article 14 paragraph 1 sanctioned according to Article 23, paragraph 1, point 1.1 of the Law no. 06 / L-011 on Prevention of Conflict of Interest, was imposed a fine of 1,500 (one thousand five hundred) Euros, which has to paid within 15 days from the date of receipt of the present Judgment. The Court of Appeals did not notify the Applicant regarding the appeal of the ACA filed against the Decision of the Basic Court in Prishtina, and consequently, the Court of Appeals had considered only the appeal claims of the ACA  but not also the Applicant’s arguments.

The Applicant filed a Referral with the Court alleging: (i) that he was not notified that the opposing party (ACA) had filed an appeal with the Court of Appeals against the decision of the Basic Court, which was favourable to him; (ii) The Court of Appeals has heard  the allegations of only one party (ACA), while the Applicant has not been given the opportunity to present his evidence and arguments regarding the subject matter of the request and the allegations of the other party in the trial (ACA). The Applicant alleged that the principle of equality of arms was violated contrary to the procedural guarantees of 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 (ECHR). The Applicant also requested the imposition of an interim measure against the Judgment of the Court of Appeals of Kosovo.

In the present case, the Court noted that the Court of Appeals (i) has read the Applicant’s appeal filed with the Basic Court against the decision of the ACA; (ii) the statement given by the Applicant at the main hearing in the Basic Court; (iii) the testimony of witness B.H., President of the KOC; and (iv) the testimony of witness D.A., ACA official. The Court of Appeals amended the Decision of the Basic Court, by finding that on the basis of the case file, the Applicant is undoubtedly a Member of the Assembly of Kosovo, at the same time is exercising the duty of  the first Vice-President of the Non-Governmental Organization – the KOC , in violation of Article 14.1 of the Law on Prevention of Conflict of Interest in Discharge of a Public Function. The Court also noted that on the basis of the complete file of the Referral but also of the content of the challenged Judgment of the Court of Appeals there isn’t any document which indicates that the Applicant was notified about the court hearing held in the Court of Appeals, and initiated by appeal of the ACA.

The Court assessed that given that the Court of Appeals amended the decision of the Basic Court which was favorable to the Applicant, it considered that the Court of Appeals had a legal and constitutional obligation to notify the Applicant about the adjudication of his case, in order to provide the latter the opportunity to respond to the appeal of the ACA. The Court also assessed that it is inadmissible for one party to file an appeal with the Court of Appeals without the knowledge of the other party, namely the Applicant, and on which the latter has not had the opportunity to comment. The Court also assessed that the Applicant had to be summoned to the court hearing by the Court of Appeals not only to have knowledge about the date and the place of the hearing, but also to have sufficient time to prepare his case and attend the court hearing.

Finally, the Court found that in the present case there has been a violation of Article 31 [Right to  Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR.

The court also rejected the request for imposition of an interim measure because it considered that based on  the content of the Referral it results  that the requirements for irreparable risk or damage, or that public interest is in question, are not met.