Constitutional Court

KI187/20, Applicant: Lorik Salihu, Constitutional review of Decision PN. no. 558/2020, of the Court of Appeals, of 18 August 2020

KI187/20, Resolution on Inadmissibility, of 30 June 2021, published on 05.08.2020

Keywords: right to fair and impartial trial, right to legal remedies, inadmissible referral, manifestly ill-founded

It is noted from the case file that the case is related to the seizure of the Applicant’s vehicle, which has happened at the request of the Basic Prosecution in Gjakova, a request approved by the Basic Court, based on suspicion that the seized vehicle has been used by the Applicant for the commission of a criminal offense, which offense he is suspected to have committed. The Applicant had filed an appeal with the Basic Court, against the Order for permitting the seizure of the vehicle. The Basic Court had rejected the appeal, and in the legal advice of its Decision it was noted that against the same decision, the parties may file an appeal to the Court of Appeals within a deadline of 3 (three) days. Following the Applicant’s appeal, the Court of Appeals had dismissed the appeal as impermissible, with the reasoning that the first instance court had miss instructed the Applicant, since based on Article 417, paragraph 5 of the CPCRK the appeal is not allowed in this specific case.

The Applicant, as the main allegation before the Constitutional Court, had raised the violation of the right protected by Article 31 [Right to Fair and Impartial Trial] and Article 32 [Right to Legal Remedies] of the Constitution.

With regard to Article 31 of the Constitution, the Applicant had only mentioned but had not elaborated or justified further before the Court how the violation of his right to fair and impartial trial guaranteed by this Article has occurred.

With regard to the allegation of violation of Article 32 of the Constitution, the Applicant alleged before the Court that his right to a legal remedy had been violated, because according to him he had based his appeal filed with the Court of Appeals on Article 24 in conjunction with Article 378 of the Criminal Procedure Code of the Republic of Kosovo, as well as based on the legal advice of the Decision of the Basic Court. Furthermore, the Applicant alleged that the legal remedy had been available to the Applicant and was provided by legal provisions. The Applicant also alleges that the challenged decision is contradictory, adding that according to him the provision of paragraph 5 of Article 417 of the Criminal Procedure Code of the Republic of Kosovo, applies only with the exception of cases, and according to him not also in the respective case.

The Court first noted that the Applicant’s allegation pertinent to the violation of Article 32 of the Constitution is in essence related to an erroneous interpretation of the applicable law.

The Court found that regardless of the constitutional right to an effective legal remedy, it is important to note that not every erroneous instruction on a legal remedy will result in a violation of the right to an effective legal remedy.

The Court regarding the case stated that the rejection of the appeal in question does not infringe the Applicant’s right to a legal remedy because he can exercise his right with regard to the respective case through an appeal against the final judgment.

The Court based on the standards set in its case law in similar cases and the case law of the ECtHR, finds that the Applicant has not proved and nor has sufficiently substantiated his allegations of violation of his fundamental rights and freedoms guaranteed by the Constitution.