Constitutional Court

KI70/21, Applicant: Burhan Tusha, Constitutional Review of the Judgment Pml.no. 293/2020 of the Supreme Court of Kosovo, of 10 November 2020

KI70/21, Resolution on Inadmissibility, of 2 June 2021, published on 22 June 2021

Keywords: Individual referral, criminal charge, traffic accident, guilty plea, waiving of rights

The Applicant was involved in a traffic accident after he had hit another vehicle with his motor vehicle, in which case several persons were injured and, as a result of the injuries, one person had died. The Basic Court, by Judgment [P.no.406/14], found the Applicant guilty of the criminal offense for which he was charged, after the latter had pleaded guilty to the criminal offense, and sentenced him to imprisonment for a term of 6 months, which sentence with the consent of the Applicant was replaced with a fine in the amount of 1,200.00 euros. However, the Court of Appeals acting on the appeals of the parties, by Judgment [PA1.no. 310/2020], approved the appeal filed by the Basic Prosecution and the injured parties as grounded in which case it amended the Judgment [P.no. 406/14] of the Basic Court, regarding the sentence by sentencing the Applicant with a sentence of effective imprisonment for a term of one (1) year.

The Applicant filed a request for protection of legality to the Supreme Court against the Judgment [PA1.no.310/2020] of the Court of Appeals alleging that the prosecutor of the present case had filed an indictment without conducting an investigation, contrary to Article 101 [Initiation of Criminal Proceedings by Investigative Stage, or Indictment] and 240 [Criminal Trial Only Conducted after Filing of Indictment] of the Criminal Procedure Code of the Republic of Kosovo. In this regard, the Supreme Court, by Judgment [Pml.no.293/2020] rejected the Applicant’s request for protection of legality as unfounded, arguing that in the present case the convicted person pleaded guilty in the presence of his defence counsel. Regarding the allegation of the convicted person’s defence counsel that a direct indictment was filed without conducting an investigation, the Supreme Court noted that this allegation does not stand because in the case file is the Resolution on the initiation of investigations against the Applicant with reference PP/II.no.846-4/10.

The Applicant alleges before the Constitutional Court that the Basic Prosecution has filed the indictment [PP/II.no. 846-410] on 4 December 2014, without the implementation of the investigation, respectively the Resolution on initiation of the investigation was issued after the indictment was filed, respectively on 12 August 2015, contrary to Article 101 [Initiation of Criminal Proceedings by Investigative Stage, or Indictment] and 240 [Criminal Trial Only Conducted after Filing of Indictment] of the CPCRK, in which case, according to him, were violated his rights guaranteed by Articles 24 [Equality Before the Law], 31 [Right to Right to Fair and Impartial Trial] and 54 [Judicial Protection of Rights] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the ECHR.

After examining the Applicant’s allegations, the Court found that his allegations of violation of the rights guaranteed by Articles 24, 31 and 54 of the Constitution must be declared inadmissible in their entirety as manifestly ill-founded because the Applicant’s allegations qualify as allegations that fall into the category of “fourth instance” allegations and the category of “unsubstantiated and unsupported” allegations. Consequently, the Referral in its entirety must be declared inadmissible as manifestly ill-founded on constitutional grounds, as set out in paragraph (2) of Rule 39 of the Rules of Procedure.