Constitutional Court

KI129/21, Applicant, Velerda Sopi, Constitutional review of “actions and inactions” of the Basic Court in Gjilan, the Basic Prosecutor’s Office in Gjilan, the Police Station in Gracanica and the Basic Prosecutor’s Office in Prishtina

KI129/21, Judgment of 7 March 2023, published on 22 March 2032

Key words: individual Referral, right to life, domestic violence, the failure of State authorities to protect right to life of Applicant’s mother, Istanbul Convention, admissible Referral, violation

The Constitutional Court of the Republic of Kosovo has decided and published the Judgment in case KI129/21, submitted by Velerda Sopi. The latter, based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo, challenged before the Court the “actions and inactions” of the state authorities, namely, the Basic Court in Gjilan, the Basic Prosecutor’s Office in Gjilan, the Police Station in Gracanica and the Basic Prosecutor’s Office in Prishtina, and which, according to her, resulted in the violation of the right to life of her mother, namely the deceased S.M., in violation of: (i) the right to life guaranteed by Article 25 [Right to Life] of the Constitution of the Republic of Kosovo and Article 2 (Right to life) of the European Convention on Human Rights; and (ii) the obligations of state authorities established in Articles 18 (General Obligations), 50 (Immediate response, prevention and protection) and 51 (Risk assessment and risk management) of the Council of Europe Convention on Prevention and Combating of Violence against Women and Domestic Violence, namely the Istanbul Convention.

The Court unanimously decided that the Referral is admissible and concluded that the Police of Kosovo, namely the Police Station in Gracanica and the State Prosecutor, namely the Basic Prosecutor’s Office in Prishtina, have failed in their positive obligation to protect the life of S.M., guaranteed by paragraph 1 of Article 25 [Right to Life] of the Constitution and paragraph 1 of Article 2 (Right to life) of the European Convention on Human Rights; and (ii) the obligations stipulated by paragraph 4 of Article 18 (General Obligations), paragraph 1 of Article 50 (Immediate response, prevention and protection), paragraph 1 of Article 51 (Risk assessment and risk management) and paragraph 1 of Article 55 (Ex parte and ex officio proceedings) of the Convention on Preventing and Combating Violence against Women and Domestic Violence.

The Court states that in the circumstances of the present case, which are elaborated in detail in the published Judgment, based on the case file, two categories of procedures were conducted, according to the relevant reports of domestic violence. The first, according to the case of domestic violence reported on 10 November 2019 for which the relevant proceedings were conducted by the Police Station, the Basic Prosecutor’s Office and the Basic Court in Gjilan. While the second, according to the case of domestic violence reported on 3 March 2021 for which the procedure was conducted at the Police Station in Gracanica and the Basic Prosecutor’s Office in Prishtina.

Regarding the first category of the proceedings, based on the case file, it results that the procedure started with the reporting of the case of domestic violence on 10 November 2019 at the Police Station in Gjilan and ended on 27 January 2020 by the Judgment of the Basic Court in Gjilan through which, the husband of the deceased S.M., was found guilty of committing the criminal offenses specified in paragraph 1 of Article 248 (Domestic Violence) and subparagraph 3.1 of Article 184 (Assault) of the Criminal Code of the Republic of Kosovo. As explained in the published Judgment, during this period of time, the respective authorities in Gjilan in accordance with their respective competences: (i) imposed the measure of detention on remand; (ii) issued the Protection Order for a duration of twelve (12) months; (iii) filed the criminal report; (iv) filed the indictment; and (v) found L.S. guilty of the criminal offenses specified above. Having said that, the published Judgment emphasizes the fact that the Basic Court in Gjilan replaced imprisonment sentence of L.S. with a fine of one thousand three hundred (1,300) euro. The relevant Protection Order expired on 26 November 2020.

Regarding the second category of proceedings, based on the case file, it results that the procedure started with the reporting of the case of domestic violence on 3 March 2021 at the Police Station in Gracanica. As explained in the published Judgment, based on the case file, it results that the following day: (i) the statement of L.S was taken; and (ii) S.M., who, according to the relevant police report, among other things, emphasized that “she is not interested in proceeding with the case”. On 14 March 2021, S.M. was deprived of her life with a firearm by L.S., who then committed suicide.

In the context of the aforementioned clarifications and based on the Applicant’s allegations, the Court focused on the assessment of the fulfillment of the positive obligations of the state in relation to the second category of proceedings, always in the context of the first category. In this regard, the Court first elaborated on the general principles in the context of the positive obligations of the state that stem, among others, from Article 25 of the Constitution, Article 2 of the European Convention on Human Rights and the relevant case law of the European Court of Human Rights, and the Convention on the Elimination of All Forms of Discrimination against Women and the Istanbul Convention.

Based on the above-mentioned principles, and with emphasis on the criteria derived from the case law of the European Court of Human Rights, including the Judgments in the cases Opuz v. Turkey, Kurt v. Austria, X and Y v. Bulgaria and Landi v. Italy, the Court assessed whether the state authorities, namely the Police Station in Gracanica and the Basic Prosecutor’s Office in Prishtina: (i) reacted immediately; (ii) carried out a genuine assessment of the risk, and which, based on the aforementioned case law, should be autonomous, proactive and comprehensive; (iii) were aware or should have been aware of the immediate and real danger to S.M.’s life; and (iv) had taken preventive measures to protect or prevent the deprivation of the life of S.M.

Based on the assessment of the aforementioned criteria, the Court emphasizes the fact that: (i) the police officers of the Police in Gracanica, had reacted immediately by going to the scene and interviewing the suspect L.S., however the latter, among others, did not follow the procedural steps provided by the Law against Domestic Violence and the Standard Operation Procedures, also ignoring the completion of the standard forms regarding the risk assessment and not notifying the Center for Social Work and Victim Advocate, and who according to the aforementioned law, would have been able to take additional steps to protect S.M.; whereas (ii) the Basic Prosecutor’s Office in Prishtina, during a period of ten (10) days, “was in the phase of gathering the necessary evidence and information for the clarification of factual circumstances that were not known to the relevant bodies”, despite the fact that the competent authority had accurate data , since after reporting the violence on 10 November 2019, regarding L.S., (i) a protection order was issued for a duration of twelve (12) months; and (ii) he was convicted for the criminal offense of domestic violence and assault by the Basic Court in Gjilan. The Court also emphasized the fact that the statement of the deceased S.M. that “she was unable to report to the police and requested that L.S. not be imprisoned, but if possible to be released”, based on the positive obligations of the state guaranteed by Article 25 of the Constitution in conjunction with Article 2 of the ECHR, as well as Articles 18 and 55 of the Istanbul Convention, does not exempt any state institution from the obligation to undertake all necessary measures determined by applicable laws and regulations for the protection of the victim of domestic violence.

After the relevant assessment of each criterion separately, the Court found that contrary to the aforementioned constitutional guarantees, but also the laws applicable in the Republic of Kosovo, including the Law against Domestic Violence and Standard Operation Procedures, but also the case law of the ECtHR, in accordance with which all public authorities are obliged to interpret fundamental rights and freedoms, the competent authorities: (i) did not react immediately; (ii) did not carry out a genuine risk assessment, which must be autonomous, proactive and immediate; (iii) in the circumstances of the present case, and taking into account that L.S., was already previously convicted for the criminal offense of domestic violence, were aware or should have been aware of the immediate and real danger to the life of S.M.; and (iv) did not take preventive measures to protect or prevent the deprivation of life of S.M..

In the end and in relation to the effect of this Judgment, the latter emphasized the fact that the Court does not have legal competences to award compensation for damage in cases where it finds violations of the respective constitutional provisions, but clarified that the Applicant has the right to resort to other legal remedies available for the further exercise of the rights for the respective compensation in accordance with the findings of this Judgment.

Finally, it should be noted that beyond the Judgment published today, which specifies the state’s obligations in the context of domestic violence and the protection of the right to life, based on constitutional guarantees, but also the international instruments directly applicable in the legal order of the Republic of Kosovo, including the principles stemming from the case law of the European Court of Human Rights, the Court also by the Judgment in case KI41/12, with Applicants Gëzim and Makfire Kastrati, published on 26 February 2013, found a violation of Article 25 of the Constitution and Article 2 of the European Convention on Human Rights, including violations of Articles 32 [Right to Legal Remedies] and 54 [Judicial Protection of Rights] of the Constitution. The Judgment of 2013 also emphasized the obligations of state authorities in the context of taking necessary measures against domestic violence and protecting the right to life. In addition, the Court recalls that the Istanbul Convention is directly applicable in the Republic of Kosovo since the adoption of the constitutional amendments on 25 September 2020. The latter also includes the obligation of the state, namely the Republic of Kosovo, to provide effective legal remedies and adequate compensation for victims of domestic violence in case of failure of the state to fulfill the relevant obligations in this context.