Constitutional Court

KI129/22, Applicant: Saša Milosavljević, Constitutional review of Decision [2022:19820], of the Basic Court in Ferizaj of 12 August 2022 and Decision [PN1 no. 1109/2022] of the Court of Appeals of Kosovo of 5 September 2022

KI129/22 Judgment of 28 July 2023, published on 17 August 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 considering 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 of (i) Article 422, paragraph 1 (Abusing official position or authority) in conjunction with Article 31 (Co-perpetration), ii) Article 428, paragraph 2 (Accepting bribes) of Criminal Code no. 04/L-082 of the Republic of Kosovo form 12 April 2012, and iii) Article 366, paragraph 1 (Unauthorized ownership, control or possession of weapons under) of Criminal Code no. 06/L-074 of the Republic of Kosovo from 14 January 2019. At the request of the relevant 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 “abusing official position or authority, accepting bribes and unauthorized ownership, control or possession of weapons” and for which a prison sentence of over 5 (five) 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 8 (eight) 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. 1109/2022] of 5 September 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 8 (eight) 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 noted 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 that a person has committed a criminal offense and only for a short period of time before the trial in the manner provided by law. However, regarding the duration of detention in the context of the criminal offense for which the Applicant is suspected, and before the indictment is filed, in terms of constitutional guarantees, the Court continued with the assessment of whether the lack of treatment of the Applicant’s specific allegation which refers to the legality of the extension of the detention measure by the Court of Appeals, could have resulted in arbitrary conclusions and, accordingly, in violation of the Applicant’s constitutional rights.

In this context, after assessing and considering the content of the challenged decision, the Court assessed that regarding the extension of the Applicant’s detention, the Court of Appeals upheld the position of the Basic Court, but did not refer to the Applicant’s specific and essential allegation raised in his appeal before this court, that is, it did not answer whether the extension of detention for more than 8 (eight) months before the indictment is filed for a criminal offense punishable by more than 5 (five) years was in violation of Article 190 of the Criminal Procedure Code and with violation of Constitution and European Convention of human rights. The Court emphasized that the non-resolution of such an important allegation related to the constitutional guarantees for the Applicant’s liberty and security by the Court of Appeals when assessing the legality of the extension of detention in the procedure before the indictment was filed, is not in compliance with Article 29 of the Constitution in conjunction with Article 5. Of European Convention of human rights and the principles and standards established by the European Court of Human Rights

Finally, based on the explanations given in the published judgment, the Court concluded that: (i) Decision [Pn1 no. 1109/2022] of the Court of Appeals of 5 September 2022 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 duration of the  extension of his detention in the proceedings before the indictment is filed, and that as such, it does not produce legal effects on other decisions related to the measure of detention, issued after the indictment is filed. In addition, and with the clarification that the Court does not have legal authorizations for assigning compensation for cases where it finds a violation of the respective constitutional provisions, the latter nevertheless emphasized that the Applicant enjoys the right that for the period of extension of his detention after the challenged Decision of the Basic Court of 12 August 2022 was rendered and until the indictment is filed against him, to request compensation from the public authorities based on the applicable legal provisions. This Judgment is also supplemented with a concurring opinion.