Constitutional Court

KI 128/19, Applicant: Artan Mala, Constitutional Review of the Judgment Pml. no. 44/2019 of 4 March 2019

KI128/19, Resolution on inadmissibility of 20 January 2021, published on 1 March 2021

Keywords: individual referral, constitutional review of the challenged Supreme Court judgment, manifestly ill-founded.

The Referral is based on Article 113.7 of the Constitution, Article 47 of Law no. 03/L-121 on the Constitutional Court of the Republic of Kosovo and Rule 32 of the Rules of Procedure of the Constitutional Court.

While serving his prison sentence, on 2 May 2014, the Applicant physically assaulted the person K.I., also in custody of the aforementioned prison, and caused him grievous bodily injuries.

On 13 June 2018, the Basic Court in Peja rendered the Judgment P. no. 285/14, by which it found the Applicant guilty of committing the criminal offenses for which he was charged based on the plea agreement, and sentenced him to a single term of imprisonment of 6 (six) months. The court found that the defendant pleaded guilty voluntarily, without any pressure, aware of the consequences and advantages of a guilty plea.

After that, the Applicant, filed an appeal with the Court of Appeals against the Judgment of the Basic Court alleging that his right to defence was violated because he was not assigned a defence counsel despite the fact that he is serving his sentence, thus his fundamental right, the right to defence, respectively the right to effective defence in a criminal matter was violated and in addition, the Applicant stated that the sentence measure in the Judgment of the Basic Court was erroneous.

Deciding on the Applicant’s appeal, the Court of Appeals rejected it as unfounded because the criminal offense for which the Applicant was found criminally responsible and guilty does not constitute a mandatory defence as provided by law, and despite all that the Applicant was advised that in case there is no economic possibility to hire a defence counsel, then the same can be assigned a defence counsel ex officio, a right which is stipulated by law. Following this notification, the accused stated that he would present his defence himself and did not want a defence counsel, even during the court hearing. The court also gave an explanation regarding the Applicant’s allegations about the calculation of the unified sentence.

This proceeding also went through a legality protection proceeding where the Supreme Court rejected the Applicant’s claim as unfounded and fully upheld the first and second instance judgments.

The Court notes that the regular courts responded to the Applicant’s allegation regarding his allegation of erroneous application of the law, respectively regarding the procedure for assigning ex officio representatives and calculating the unified sentence. The regular courts assessed these allegations as unfounded and found that the substantive law was correctly applied.

In that sense, the Court finds that there is nothing to indicate that the regular courts “applied the law in an apparently arbitrary manner”, and which application could result in “arbitrary” or “apparently unreasonable” conclusions for the Applicant.

Therefore, in these circumstances, and based on the above and taking into account the allegations made by the Applicant and the facts presented by him, the Court, relying also on the standards established in its case law in similar cases and the case law of the ECtHR, finds that the Applicant has not sufficiently proved and substantiated his allegation of a violation of fundamental rights and freedoms with regard to Article 30 and Article 31 of the Constitution in conjunction with Article 6 of the ECHR.

Accordingly, the Court finds that the Referral is manifestly ill-founded on constitutional grounds and declares it inadmissible.