Constitutional Court

KI85/22, Applicant: Jadran Kostić, Constitutional review of Decision 2022:19820 of the Basic Court in Ferizaj of 17 May 2022 and Decision PN1 no. 704/2022 of the Court of Appeals of Kosovo of 31 May 2022

KI85/22, Judgment of 27 April 2023, published on 23 May 2023

Keywords: individual referral, extension of detention before indictment is filed, legality of detention, request for interim measure, admissible referral, violation of the applicant’s right to liberty and security, rejection of the request for interim measure

The circumstances of this case are related to the extension and duration of the Applicant’s detention before the indictment was filed in the criminal proceedings. In the circumstances of the present case, the initial detention measure, following the request of the Basic Prosecutor’s Office in Ferizaj, was imposed by the Basic Court in Ferizaj in December 2021. This measure was imposed taking into account the results of the investigations related to the commission of the criminal offense during the issuance of construction permits in the “Sharri” National Park, there was a reasonable suspicion that the Applicant has committed the criminal offense “Providing assistance to perpetrators after the commission of criminal offenses” stipulated by the Criminal Code no. 04/L-082 of the Republic of Kosovo. At the request of the respective Prosecutor’s Office, the detention measure in the case of the Applicant was extended several times by the Basic Court. The Applicant, in the relevant appeal before the Court of Appeals, specifically claimed that, taking into account that in his case there was a grounded suspicion that he had committed the criminal offense of “Providing assistance to perpetrators after the commission of criminal offenses” and for which a prison sentence of 6 months to 5 years is provided, based on paragraph 2 of Article 190 (Time Limits for Detention on Remand) of the Criminal Procedure Code of the Republic of Kosovo, his detention cannot last more than four (4) months before the filing of the indictment and as a consequence the extension of his detention was contrary to the law and his rights guaranteed by the Constitution. The Court of Appeals, by the Decision [Pn1 no. 704/2022] of 31 May 2022, upheld the extension of detention on remand.

The Applicant challenges this Decision before the Court, alleging that the extension of his detention after the (4) month period, as established in the Criminal Procedure Code, violates his rights guaranteed by Articles 29 [Right to Liberty and Security], 30 [Rights of the Accused] and 31 [Right to  Fair and Impartial Trial] of the Constitution.

In assessing the Applicant’s allegations, the Court first elaborated the general principles of its case law and of the European Court of Human Rights regarding the imposition of detention within the meaning of Article 29 of the Constitution and Article 5 (Right to liberty and security) of the European Convention on Human Rights. In the application of these principles in the circumstances of the Applicant’s case, the Court found that the imposition of his detention is based on Article 29.1.2 of the Constitution in conjunction with Article 5.1 (c) of the European Convention on Human Rights, where it is stipulated that detention can be imposed on the grounds of the reasonable suspicion of committing a criminal offense and only for a short period of time before the trial in the manner provided by law. However, in terms of the duration of detention in the context of the criminal offense which the applicant is suspected of having committed and before the indictment is filed, in the sense of constitutional guarantees, the Court proceeded with the assessment of whether the lack of addressing the specific allegation of the Applicant by the Court of Appeals, which is related to the legality of the extension of the measure of detention, could result in arbitrary conclusions and consequently violation of the Applicant’s constitutional rights.

In this regard, after assessing and examining the content of the challenged decision, the Court assessed that, in relation to the extension of the Applicant’s detention, the Court of Appeals upheld the position of the Basic Court, but did not address the specific and essential allegation of the Applicant raised in his appeal before this court, namely it did not provide an answer whether the extension of his detention for more than four (4) months before the indictment was filed for a criminal offense punishable up to five (5) years, was contrary to Article 190 of the Criminal Procedure Code. The Court noted that the failure to address such an essential allegation related to the constitutional guarantees for liberty and security of the Applicant by the Court of Appeals when assessing the legality of the extension of his detention in the procedure before the indictment is filed, is not in compliance with Article 29 of Constitution and the principles and standards established by the European Court of Human Rights.

Finally, based on the clarifications given in the published Judgment, the Court concluded that: (i) The Judgment [Pn1 no. 704/2022] of 31 May 2022 of the Court of Appeals is not in compliance with paragraph 4 of Article 29 [Right to Liberty and Security] of the Constitution in conjunction with paragraph 4 of Article 5 (Right to liberty and security) of the European Convention on Human Rights; and (ii) rejected his request for interim measure. In the following, the Court, based on the fact that the Applicant’s case is pending in the criminal proceedings, emphasized that the effect of this judgment extends only to the imposition and extension of his detention in the proceedings before the indictment is filed, and that as such it is not valid or produces effects on other decisions related to the measure of detention, issued after the indictment is filed. Moreover, and with the clarification that the Court does not have legal authorizations for assigning any type or method of compensation for cases where it finds a violation of the respective constitutional provisions, the latter nevertheless clarified that the Applicant enjoys the right that for the period of extension of his detention after the challenged Decision of the Basic Court of 17 May 2022 was rendered and until the indictment is raised against him, to request compensation from the public authorities based on the applicable legal provisions. This Judgment is also supplemented with a concurring opinion.