Decisions published in December 2023

12.01.2024

In December 2023, in the Constitutional Court:

• five (5) cases were reviewed;
• decisions were rendered for two (2) cases:

(i) Judgment in case KO 55/23 – request for constitutional review of the proposed constitutional amendments on Vetting in the Justice System
(to read the notification regarding the Judgment click here);
(ii) Judgment in case KO 79/23 – request for constitutional review of the Law no. 08/L-196 on Salaries in the Public Sector
(to read the notification regarding the Judgment click here);

The procedure for their publication is further subject to the decisions of the Law on the Constitutional Court and its Rules of Procedure;
• seventeen (17) decisions were published;

In this period, on the Constitutional Court’s webpage are published (i) one (1) Judgment; (ii) fourteen (14) Resolutions on Inadmissibility; and (iii) two (2) Decisions to reject the Referral.

Judgments
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I.
1. KI74/22
Applicant: Zoran Đokić
Published on: 11 December 2023
Request for constitutional of Judgment [Pml. no. 19/2022] of the Supreme Court, of 15 February 2022

The Court assessed the constitutionality of Judgment [Pml. no. 19/2022] of 15 February 2022 of the Supreme Court of the Republic of Kosovo, in conjunction with the Judgment [APS. no. 22/2021] of 12 October 2021 of the Court of Appeals and the Judgment [ST. no. 15/19] of 11 February 2021 of the Basic Court in Prishtina. The case is related to the indictment that the Special Prosecutor’s Office of the Republic of Kosovo brought against the Applicant under the grounded suspicion that he has committed for war crimes, in violation of Article 3 (Conflicts not of an international character) of the Geneva Conventions of 12 August 1949 and the Additional Protocols of 1977 and 2005, based on paragraph 1 of Article 152 (War crimes in serious violation of Article 3 Common to the Geneva Conventions) of the Criminal Code no. 04/L-82 of the Republic of Kosovo and Article 142 of the Criminal Law of Socialist Federal Republic of Yugoslavia. The Basic Court in Prishtina found the Applicant guilty, among other things, because, in co-perpetration, he had committed the criminal offense which he was charged with, and consequently sentenced him to imprisonment in duration of twelve (12) years. The Court of Appeals and the Supreme Court, acting upon the appeal and the request for the protection of legality, respectively, upheld the contested Judgment of the Basic Court. Before the Court, the Applicant alleged a violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with paragraph 3 (a) and (d) of Article 6 (Right to a fair trial) of the European Convention on Human Rights, claiming, in essence, that (i) the prosecution and the regular courts did not give him the opportunity to declare about the amended and expanded indictment against him; (ii) investigative actions, namely the questioning of witnesses, injured parties and identification of the Applicant, were carried out without the presence of the defense counsel; (iii) according to paragraph 2 of Article 288 (Requests after Main Trial Scheduled) of the Code no. 04/L-123 of the Criminal Procedure of the Republic of Kosovo, the proposal of new witnesses can only be accepted if the proposed witnesses were not known at the time of the second initial hearing, which in his case was not the case; and (iv) the regular courts did not hear the witnesses who would have testified in favor of the Applicant or at least their testimony would have been neutral. The Court assessed the Applicant’s allegations and, in this context, (i) first elaborated the general principles regarding the right to be informed about the amendment and extension of the indictment, the rights of defense in criminal proceedings, the right to confrontation of witnesses and hearing of witnesses in favor of the Applicant, as guaranteed by the aforementioned acts, and then (ii) applied the latter to the circumstances of the present case. In this context and according to the elaborations detailed in the Judgment, the Court assessed that: (i) the prosecutor has timely notified the defense of the Applicant regarding the expansion of the indictment, which was also established during the court process by the Court of Appeals that the possibility of practical exercise and effective defense against the expansion of the indictment was given to the defense of the Applicant; (ii) the expansion of the indictment against the Applicant did not change the qualification of the criminal offense and did not change the role of the Applicant in committing the criminal offense; (iii) the regular courts explained that the witnesses were confronted with the Applicant and/or his defense and that they identified him as having been present in certain situations when the criminal offenses were committed; (iv) the regular courts have not denied the Applicant’s right to propose new witnesses, but they have emphasized that the proposal of witnesses also applies to the injured parties, which is in accordance with the principle of “equality of arms” as guaranteed by the right to fair and impartial trial; (v) the regular courts have also heard the witnesses in favor of the Applicant, while the weight given to the testimony of those witnesses is a matter of the jurisdiction and scope of the regular courts. Consequently, the Cout held that the Judgment [Pml. no. 19/2022] of the Supreme Court of 15 February 2022; the Judgment [APS. no. 22/2021] of the Court of Appeals of 12 October 2021 and the Judgment [ST. no. 15/19] of the Basic Court of 11 February 2021, are not contrary to paragraphs 1, 2 and 4 of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo and Article 6 (3) (a), (b) and (d) (Right to a fair trial) of the European Convention on Human Rights.

You can read the notification regarding the Judgment by clicking here

You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in the English language, by clicking here

Resolutions on Inadmissibility
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II.
In seven (7) Resolutions on Inadmissibility published by the Court, the latter found that the Applicant’s Referral is inadmissible pursuant to paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution,, Article 48 (Accuracy of the Referral) of the Law, paragraph (2) of Rule 34 (Admissibility Criteria) of the Rules of Procedure, because (i) the Applicant’s allegations enter the category of fourth instance; (ii) reflect allegations entailing “apparent absence of violation”, and/or (iii) the latter are “unsubstantiated or unreasoned”.

2. KI89/23
Applicant: “Rex Marble l.l.c”
Published on: 4 December 2023
Request for constitutional review of Decision [K.DH.SH.II.1597/2022], of the Commercial Court-Second Instance Chamber of 8 December 2022