Constitutional Court

KI111/20, Applicant: Elez Elezi, Constitutional review of Judgment Pml. No. 48/2020 of 27 May 2020 of the Supreme Court, in conjunction with Judgment [PAKR. No. 144/2019] of 9 July 2019 of the Court of Appeals of Kosovo and Judgment [PKR. No. 111/2016] of 21 February 2019 of the Basic Court in Gjilan, Serious Crimes Department

KI111/20, Resolution on Inadmissibility, adopted on 25 November 2020

Keywords: individual referral, manifestly ill-founded referral on constitutional basis, request for interim measure, request for non-disclosure of identity, inadmissible referral.

1. On 21 February 2019, the Basic Court in Gjilan, Serious Crimes Department in the proceedings after remanding the case for retrial for the second time, by Judgment [PKR. 111/2016] of 21 February 2019, found the Applicant guilty of committing the criminal offense of “accepting bribes“ under Article 343, paragraph 1 of the CPCK and sentenced him to imprisonment for a term of one hundred and eighty (180) days and imposed an accessory punishment, prohibition to exercise the profession-activity or official duty for a period of one (1) year”, a sentence which would be implemented from the date the Judgment becomes final. The court also decided that the time spent under house arrest would be counted in the sentence of imprisonment. As a result of the appeal filed by the Applicant with the Court of Appeals,  the latter, by Judgment [PAKR. No. 144/2019] of 9 July 2019 partially upheld the Applicant’s appeal and modified the Judgment of the Basic Court only in relation to the decision on the sentence deciding that the Applicant for the commission of the criminal offense for which he was found guilty be sentenced to imprisonment for a term of three (3) months, in which sentence would be counted the time spent under the house arrest from 22 May 2012 to 7 June 2012. As a result of the request for protection of legality filed by the Applicant with the Supreme Court, the latter by the Judgment [Pml. No. 48/2020] of 27 May 2020 rejected as ungrounded his request for protection of legality. The Applicant further filed requests for approval of the request “for prohibition to commence the execution of the sentence imposed by the judgment of the I-st instance be approved until this case is decided by this court” as well as non-disclosure of his identity in the proceedings before the Constitutional Court.

2. The Applicant in relation to the abovementioned findings of the regular courts alleged that his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution) have been violated as a result of violations of Article 24o, paragraph 5 of the Provisional Criminal Procedure Code of Kosovo; Article 384, paragraph 1, subparagraph 1.12; Article 365, paragraph 1; and Article 384, paragraph 2, subparagraphs 2.1 and 2.2. of the Criminal Procedure Code of the Republic of Kosovo. The Applicant, in essence alleged violation of the abovementioned legal provisions, because (i) the evidence in the proceedings were obtained in an unlawful manner; (ii) the decisions are unclear and do not contain sufficient reasons for the decisive facts; and (iii) there is insufficient evidence that the Applicant has committed the criminal offense for which he was convicted.

3. The Court, after assessing the Applicant’s allegations, applying the standards of case law of the European Court of Human Rights, found that the Referral is inadmissible, because the Applicant has failed to prove and substantiate his allegation as to how the Supreme Court in the interpretation and application of substantive law, namely the provisions of the Criminal Code and the Criminal Procedure Code has violated his right guaranteed by Article 31 of the Constitution, and therefore, this allegation is manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 39 of the Rules of Procedure. Subsequently, the Court also decided to reject his request for an interim measure, namely his request for the suspension of the final Judgment for the commencement of the execution of the imprisonment sentence, and also rejected his request for non-disclosure of identity.