Constitutional Court

Case No. KI34/18, Applicant: Albert Berisha, constitutional review of Judgment PML. No. 225/2017 of the Supreme Court, of 18 December 2017

KI34/18, Resolution on Inadmissibility of 23 May 2018, published on 18 June 2018

Keywords: individual referral, criminal proceedings, right to a fair trial, “fourth instance court”

The Applicant was found guilty by the Basic Court in Prishtina for the criminal offense „Organization and participation in a terrorist group“. The Applicant filed an appeal with the Court of Appeals against the Judgment of the Basic Court. In the appeal before the Court of Appeals, the Applicant claimed that he was denied a fair trial because his conviction was based on wrong interpretation of the facts. The Court of Appeals rejected the Applicant’s claims. The Applicant filed a request for protection of legality with the Supreme Court against Judgment of the Court of Appeals, alleging a violation of his right to a fair trial because of a violation of the principle of equality of arms.

The request for protection of the legality of the Applicant was rejected by the Supreme Court as ungrounded, in particular because the witnesses the Applicant requested to be called were official persons, whose evidence was included in the case file.

In his Referral before the Constitutional Court, the Applicant alleged that his rights to a fair trial had been violated. The Applicant claimed that his right to remain silent was violated because his statements given during the investigation were used in evidence against him. Furthermore, he claimed that his right to equality of arms was violated because he was not allowed to call specific witnesses. He also alleged that the decisions of the regular courts were not reasoned and that, in his case the principles of the right to a fair trial where not respected, therefore his detention was not lawfully based on a conviction by a competent court.

The Court assessed that the regular court’s judgments were well reasoned, that the Applicant’s statements given during the pre-trial investigation were lawfully obtained and valid evidence, and that the Applicant had benefitted from the presence of defense counsel during his interview by the police officers.

As regards the Applicant’s allegations concerning the violation of Article 5 (Right to liberty and security), of the ECHR, the Court found that the Applicant was convicted by a „competent court“ which  conducted a comprehensive procedure that resulted in the establishment of criminal responsibility.

Accordingly, the Court concluded that nothing in the case presented by the Applicant indicates that the proceedings before the regular courts were unfair or arbitrary in order for the Constitutional Court to conclude that the core of the right to fair and impartial trial has been violated, or that the Applicant was denied any procedural guarantees, which would lead to a violation of the right to a fair trial under Article 31 of the Constitution or Article 6 of the ECHR. Furthermore, the Court further considered that it cannot act as a “fourth instance court“ to review all the evidence and pronounce on the Applicant’s guilt or innocence.

In this regard, the Court declared the Applicant’s Referral as manifestly ill-founded on constitutional basis and declared it inadmissible in accordance with Rule 36 (1) (d) and (2) (d) of the Rules of Procedure.