Constitutional Court

KI142/20, Applicant: Albert Hyseni, Constitutional review of Decision PN. No. 426/2020 of the Court of Appeals of 23 June 2020

KI142/20, Resolution on Inadmissibility, adopted on 20 May 2021, published on 11 June 2021

Key words: individual referral, criminal procedure, manifestly ill-founded referral, inadmissible referral

The Referral was submitted by Albert Hyseni from Gjakova, represented by Teki Bokshi from Gjakova, who challenged the Decision [PN. No. 426/2020] of 23 June 2020 of the Court of Appeals. He alleged that the Decision of the Court of Appeals violated his rights guaranteed by Articles 1 [Definition of State], 7 [Values], 3 [Equality Before the Law], 21 [General Principles], 29 [Right to Liberty and Security], and 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 [Right to a fair trial] of the ECHR.

The Applicant further emphasized that that the regular courts have erroneously established the fact that he was not entitled to be released from serving his sentence, pursuant to the agreement concluded in Belgrade between UNMIK and the Federal Republic of Yugoslavia on 5 November. 2001, because the offense for which he was found guilty, belonged to the group of ordinary criminal offenses. In this regard, he emphasizes that after the return of prisoners to Kosovo, not only prisoners who were deprived of their liberty and tried as a result of the armed conflict, namely the war in Kosovo, were released, but also other prisoners were released, thus, as result, all court decisions of the Serbian regime in Kosovo have been reviewed by the UNMIK Department of Justice, and all prisoners have been released on that ground.

The Court noted that the Applicant complains in essence of a violation of: (i) the right to a fair and impartial trial guaranteed by Article 31 of the Constitution and Article 6 of the ECHR, (ii) the right to equality before the law guaranteed by Article 24 of the Constitution and (iii) and for violation of rights under Articles 1 [Definition of State], 3 [Equality Before the Law], 7 [Values], 21 [General Principles], 29 [Right to Liberty and Security] of the Constitution. The Court will therefore consider each of these allegations individually.

With regard to the first allegation, the Court first notes that as a general rule, the allegations of erroneous determination of factual situation and erroneous interpretation of the law, allegedly made by the regular courts, are related to the scope of legality and, as such, do not fall under the jurisdiction of the Court, therefore, in principle, the Court cannot consider them (See, the case of Court No. KI06/17, Applicant L.G. and five others, Resolution on Inadmissibility, of 25 October 2016, paragraph 36; case KI122/16, Applicant Riza Dembogaj, Judgment of 30 May 2018, paragraph 56; and KI49/19 Applicant Limak Kosovo International Airport J.S.C. “Adem Jashari” , Resolution on Inadmissibility of 10 October 2019, paragraph 47).

The Court concluded that the Applicant’s allegations of violation of the right to fair and impartial trial guaranteed by Article 31 of the Constitution and Article 6 of the ECHR due to erroneous determination of the factual situation and erroneous interpretation and application of the applicable law are (i) allegations that qualify as “fourth instance” allegations; and as such, these Applicant’s allegations are manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 39 of the Rules of Procedure.

Regarding allegation of violation of Article 24 of the Constitution, the Court notes that at the time when the agreement between UNMIK and the Federal Republic of Yugoslavia on the transfer of Kosovar prisoners from prisons in Serbia to prisons in Kosovo was concluded, the Applicant was not in prison, but he escaped from there, which is also confirmed by his representative “reason why his criminal case was not included in the administrative order for release, because he was already free at the time, was in Kosovo at liberty and that his case had no reason to be reconsidered”. Thus, the Court finds that the Applicant, upon his escape, had interrupted serving his sentence in half and a warrant was issued for him by the Serbian state where he was serving his sentence, according to which warrant, he was arrested by the Hungarian authorities and then extradited to Kosovo to continue serving his sentence.

In this view, the Court considered that the decision of the Court of Appeals does not contain elements of violation of equality before the law, namely elements of unequal treatment, as alleged by the Applicant. Furthermore, none of the grounds required by the Constitution, when interpreted in the light of the Convention, support the Applicant’s allegation of a violation of fundamental rights, because he does not in any way prove or substantiate that the regular courts treated him in an unequal and discriminatory manner (see, inter alia, the case of Court KI173/18, Applicant Nijazi Pasoma, Resolution on Inadmissibility of 22 July 2019, paragraph 32). Therefore, the Court concludes that the Applicant’s allegations of violation of the right to equality before the law guaranteed by Article 24 of the Constitution due to the Applicant’s unequal treatment in relation to third parties are (i) allegations which are considered as “fourth instance” allegations; and as such these allegations of the Applicant are manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 39 of the Rules of Procedure.

Regarding the Applicant’s allegations of violation of the rights guaranteed by Articles 1, 3, 7 and 29 of the Constitution, the Court notes that the Applicant merely mentions the respective articles but does not further elaborate on why and how this violation of these relevant articles of the Constitution resulted. The Court recalls that it has consistently reiterated that the mere reference to Articles of the Constitution and the ECHR and their mentioning is not sufficient to build an arguable allegation of a constitutional violation. When alleging such violations of the Constitution, the applicants must provide reasoned allegations and compelling arguments (see, in this context, cases KI175/20, cited above, paragraph 81, KI166/20 cited above, paragraph 52, KI04/21 cited above, paragraphs 38- 39). Therefore, the Court concludes that regarding the Applicant’s allegations of violation of the rights guaranteed by Articles 1, 3, 7 and 29 of the Constitution, the Court finds that the Referral should be declared inadmissible as manifestly ill-founded, because these allegations qualify as allegations falling into the category of  (iii) “unsubstantiated or unsupported” allegations, because the Applicant merely cited one or more provisions of the Convention or the Constitution, without explaining how they have been violated. Therefore, the latter are manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 39 of the Rules of Procedure.

In sum, in accordance with Rule 39 (2) of the Rules of Procedure, the Referral was declared as manifestly ill-founded on constitutional basis and, therefore, inadmissible.