Constitutional Court

KI272/23, Applicant Ali Tahiri, Constitutional review of the Decision [AKPA.II.No.163/23] of the Appellate Prosecution Office, of 1 November 2023

KI272/23, Judgment of 16 November 2024, published on 28 August 2024

Keywords: criminal report; dismissal of the appeal; legal deadline;

On 16 July 2024, the Constitutional Court of the Republic of Kosovo decided on Referral KI272/23, whereby the constitutional review of the Decision [AKPA. II. No. 163/23] of the Appellate Prosecution Office, of 1 November 2023, was requested. The Court unanimously decided to (i) declare the Referral admissible; (ii) hold that the Decision [AKAP. II. No.136/23] of the Appellate Prosecution Office, of 1 November 2023, is not in compliance with Article 32 [Right to Legal Remedies] of the Constitution of the Republic of Kosovo; (iii) declare the Decision [AKAP.II.No.136/23] of the Appellate Prosecution Office, of 1 November 2023, invalid; and (iv) remand the case for reconsideration, in accordance with the findings of this Judgment.

The circumstances of the case are related to the time limits specified in the applicable laws for filing an appeal against the decision of the Basic Prosecution on dismissal of the criminal report. More precisely, in the circumstances of the case, (i) the Applicant filed a criminal report with the Basic Prosecution in Gjakova against A.T. and T.K., which the Basic Prosecution dismissed, reasoning that the criminal offense of which A.T. and T.K. were accused had reached the absolute statute of limitations; and (ii) the Applicant filed an appeal against this Decision with the Appellate Prosecution Office, which the latter dismissed reasoning that it was filed out of the legal deadline of eight (8) days. The Appellate Prosecution Office emphasized that the Applicant received the Decision on 16 October 2023, while he submitted the appeal on 25 October 2023.

The Applicant challenges the aforementioned decision of the Appellate Prosecution Office before the Court, claiming that it is in contradiction with Articles 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution in conjunction with Article 13 of the European Convention on Human Rights (ECHR), inter alia, because his right to access to justice and effective legal remedy was violated, clarifying that the Appellate Prosecution Office incorrectly applied the legal provisions related to procedural time limits, as his appeal to the Appellate Prosecution Office was submitted by post on 23 October 2023 and not on 25 October 2023, therefore the date of mailing shall be considered the date of submission to the Appellate Prosecution Office.

In assessing the Applicant’s claims, the Judgment elaborated on the principles derived from its case law and that of the European Court of Human Rights in the context of access to justice and effective legal remedy and,  among other things, it clarified that the Applicant had used a legal remedy provided by the Criminal Procedure Code, which establishes the right to appeal decisions of the Basic Prosecution in cases where it decides to dismiss the criminal report, while based on the case file, it was found that the Applicant had submitted the appeal to the Appellate Prosecution Office via mail on 23 October 2023 and, therefore, within the time limits specified by paragraph 3 of Article 444 (Prescribed Periods of Time) of the Criminal Procedure Code. Consequently, and according to the clarifications provided in the Judgment, the Appellate Prosecution Office had manifestly miscalculated the deadline for submitting the appeal, thereby violating the Applicant’s rights to access to justice and a legal remedy.