Constitutional Court

Case No. KO50/19, Applicant: the Supreme Court of the Republic of Kosovo, Request for constitutional review of Article 5 paragraph 2, and Article 7 paragraphs 3, 4 and 5 of Law No. 04/L-140 on Extended Powers for Confiscation of Assets Acquired by Criminal Offense and Article 19 paragraph 1 subparagraph 1, paragraph 2 subparagraph 1, as well as paragraphs 7 and 8 of Law No. 06/L-087 on Extended Powers for Confiscation of Assets

 Keywords: institutional referral, the Supreme Court of the Republic of Kosovo, constitutional review of Article 5 paragraph 2, Article 7 paragraphs 3, 4 and 5 of Law No. 04/L-140 on Extended Powers for Confiscation of Assets Acquired by Criminal Offense (Contested Law 1) and Article 19 paragraph 1 subparagraph 1, paragraph 2 subparagraph 1, as well as paragraphs 7 and 8 of Law No. 06/L-087 on Extended Powers for Confiscation of Assets (Contested Law 2), manifestly ill-founded referral.

The subject matter of the Referral was the constitutional review of Article 5 paragraph 2, Article 7 paragraphs 3, 4 and 5 of the challenged Law 1 and Article 19 paragraph 1 subparagraph 1, paragraph 2 subparagraph 1, as well as paragraphs 7 and 8 of the challenged Law 2, who are allegedly in violation of Article 30 [Rights of the Accused], of the Constitution.

The Applicant alleges that according to the provisions of Article 7.3, 7.4 and 7.5 of the challenged Law 1, an indictment may be filed against the deceased, a defense counsel may be appointed and the court hearing may be held, which is contrary to the provisions of the CPCK.

The Court initially assessed whether the submitted Referral meets the admissibility requirements, as established in the Constitution and further specified in the Law on the Constitutional Court and the Rules of Procedure of the Court. Consequently, the Court notes that in the context of the assessment of the criterion of whether the challenged Laws should be applied directly by the referring Court in the case under consideration before it, concluded that this criterion is not met.

The Court found that the facts of the case show that on 14 October 2020, the referring Court had resolved the case before it. This resolution or completion of the case was made by the Supreme Court, by rendering Decision Pml. No. 3/2019, where it rejected the request of the interested party for protection of legality – on the grounds that after the withdrawal of the SPRK from the indictment there was no more competence to continue the criminal procedure.

The Court recalls its position that the Court may decide on the referrals relating to Article 113.8 of the Constitution only if there is an active case pending before the referring court and where “the referring court’s decision on that case depends on the compatibility of the law at issue”. As explained above, there is no longer an active case before the referring court, because the request for protection of legality the adjudication of which was suspended until a decision of the Constitutional Court – has already been resolved as a matter by the Supreme Court.

The Supreme Court could not decide on the case that it had already referred to the Constitutional Court before requesting the withdrawal of the case from the review proceedings in the Constitutional Court. This is due to the fact that Article 52 of the Law clearly states that: “After the submission of a referral pursuant to Article 113, Paragraph 8 of the Constitution, the procedure before the referring court shall be suspended until a decision of the Constitutional Court is rendered”. This means that Article 52 of the Law provides for an ex lege suspension of the procedure at the moment the referral with the Constitutional Court is filed based on Article 113.8 of the Constitution. It follows that the Supreme Court was not able to take any procedural action in relation to the case without first notifying the Constitutional Court to which the case was referred for review.

In sum, in accordance with Article 113.8 of the Constitution, Articles 20, 51, 52 and 53 of the Law and Rule 77 of the Rules of Procedure, the Court declares Referral KO50/19 inadmissible for further consideration.