Constitutional Court

The applicant, Mr. Shaban Mushtafa, filed a Referral pursuant to Article 113.7 of the Constitution of Kosovo challenging the judgment of the Supreme Court, Rev. no. 406/2008, as being taken in violation of his rights guaranteed by Articles 3.2 [Equality Before the Law], 24.1 [Equality Before the Law] and 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 of ECHR. The Applicant complains, in particular, that the Supreme Court rendered a judgment without the Applicant having been notified and summoned to take part in the proceedings in the same way as the public prosecutor. The Office of the Chief State Prosecutor replied that they supported the Judgment of the Supreme Court and that the Applicant’s rights as guaranteed by the Constitution had not been violated.
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. Shaban Mustafa, owner of the “Beni Dona” Company, contests the constitutionality of Judgment Rev. no. 406/2008 of the Supreme Court, dated 3 September 2010, directed against the Company. 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 21.4 and 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 Company was served with the above Judgment of the Supreme Court on 6 October 2010, while the Applicant submitted the Referral to the Court on 12 October 2010, 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 the Applicant could not have exercised his right to a fair trial without being present at these proceedings before the Supreme Court. Therefore, by not notifying the Applicant of the request for protection of legality lodged by the Public Prosecutor and by not inviting him as a party to the proceedings before the Supreme Court, the Supreme Court, in its Judgment of 3 September 2010, infringed the Applicants’ right to a fair trial under Article 31 of the Constitution and Article 6 (1) ECHR. 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 Judgment of the Supreme Court of Kosovo and remanded the Judgment to the Supreme Court for reconsideration in conformity with the judgment of this Court.