Constitutional Court

The applicant, Mr. Bajrush Gashi, filed a Referral pursuant to Article 113.7 of the Constitution of Kosovo challenging the decision of the Supreme Court, Pzd. no. 67/2011, as being taken in violation of his rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 of ECHR. The Applicant complains, in particular, that the Judge who was the presiding judge of the District Court in Prizren and decided his case also took part in the decision of the Supreme Court on his request for extraordinary mitigation of the sentence (the judge in question). Furthermore, the Applicant claims that the judge in question had to inform the Supreme Court that the judge in question was Presiding Judge in District Court in Prizren and was to be disqualified to participate in the Supreme Court panel.
On the issue of the admissibility of the Referral, the Court held, based upon the plain language of Article 113.7 that the referral was admissible because in the present Referral Mr. Bajrush Gashi contests the constitutionality of Decision Pzd. no. 67/2011 of the Supreme Court, dated 12 December 2011. Therefore, the Applicant must be considered as an authorized party, entitled to refer this case to the Court and to have exhausted all legal remedies as provided by law, pursuant to Article 113.7 of the Constitution. As to the requirement of Article 49 of the Law that the Applicant must have submitted the Referral within a period of four (4) months, the Court determines from the submissions of the Applicant that the Applicant was served with the above Decision of the Supreme Court on an unspecified date, while the Applicant submitted the Referral to the Court on 27 January 2012, i.e. within the four months time limit as provided by Article 49 of the Law. Further, the Applicant has set out in detail what rights under the Constitution and the ECHR have allegedly been violated and by what public authority. Hence, the Court also finds that the Applicant has fulfilled the requirement of Article 48 of the Law.
On the merits of the Referral, the Court held that in the circumstances of the case the impartiality of the Supreme Court is capable of appearing to be open to doubt and that the Applicant’s fears in this respect can be considered subjectively and objectively justified. The Court considers also that the issue of whether or not there are enough judges to decide on requests for mitigation of sentence is a matter entirely within the jurisdiction of and for discussion, if appropriate, between the judiciary and the Government. The primary responsibility for the proper administration of Justice is the Government and organizational issues cannot be used as an excuse for not adhering to the Constitution (see Case No. KO 4/11, Supreme Court of Kosovo requesting Constitutional Review of Articles 35, 36, 37 and 38 of the Law on Expropriation of Immovable Property, No. 03/L-139, Judgment of 1 March 2012). In these circumstances, the Court holds that the right to a fair and impartial trial by an independent tribunal, as guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 [Right to fair trial] of ECHR of the ECHR has been violated. In reaching its decision, the Court also relied on the decisions of the European Court of Human Rights addressing the same or similar issue. The Court declared null and void the decision of the Supreme Court of Kosovo and remanded the decision to the Supreme Court for reconsideration in conformity with the judgment of this Court.