Constitutional Court

KI43/23, Applicant Armend Hamiti, Constitutional review of Judgment [AA. no. 37/22] of 18 January 2023, of the Supreme Court of Kosovo

KI43/23, Judgment of 17 January 2024, published on 11 March 2024

Keywords: individual referral, right to fair and impartial trial, unreasoned court decision

The Constitutional Court of the Republic of Kosovo has decided on the Referral in case KI43/23, with Applicant Armend Hamiti, for constitutional review of  the Judgment [AA. no. 37/22] of 18 January 2023 of the Supreme Court of the Republic of Kosovo in conjunction with Decision [KPK/No. 1513/2022] of 29 November 2022, of the Kosovo Prosecutorial Council (KPC), submitted to the Court based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo.

The Court unanimously held that: (i) the Referral is admissible; (ii) there has been a violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights; and (iii) to declare invalid Judgment [AA. no. 37/22] of 18 January 2023, remanding the latter for reconsideration to the Supreme Court.

The circumstances of the present case are related to the disciplinary proceedings initiated by the Chief Prosecutor of the Basic Prosecutor’s Office, in the capacity of the Competent Authority based on the applicable law, against the Applicant, who exercises the function of the Prosecutor in the Serious Crimes Department in the Basic Prosecutor’s Office in Prishtina. The aforementioned proceedings were initiated, after a news item was published in a portal with several photographs of a meeting between the Applicant and Sh.K., convicted of various criminal offences. As a result, based on the case file, the KPC established the Investigation Panel for the Conduct of Disciplinary Investigations against the Applicant. The composition of this panel was then changed by the Chair of the KPC, in order to replace one of the panel members, on the grounds that he was on annual leave. The Applicant then turned to the Agency for Prevention of Corruption (APC), requesting it to assess whether the initiation of the disciplinary proceedings by the Applicant’s superior, as the competent authority, represents a conflict of interest. The KPC suspended the disciplinary proceedings until the decision-making of the APC, which after examining the request, found that the initiation of the disciplinary proceedings by the superior of the Applicant did not constitute a conflict of interest.

In the meantime, the Applicant requested the KPC (i) the replacement of the member of the Investigation Panel on the grounds that the latter was replaced illegally by an incompetent body, namely the Chair of the KPC and not by the KPC as a collegial body; (ii) suspension of the disciplinary proceedings on the grounds that it was conducted in violation of the legislation in force; (iii) contested the mandate of the Investigation Panel on the grounds that the legal deadline for undertaking investigative actions has expired; and requested (iv) the exclusion of all members of the Investigation Panel, on the grounds that all relevant members are from his birthplace.

According to the clarifications given in the Judgment, (i) on 1 November 2022, the Investigation Panel submitted the Investigation Report to the KPC, according to which the actions of the Applicant resulted in a violation of Article 6 (Disciplinary offenses for prosecutors) of the Law no. 06/L-057 on Disciplinary Liability of Judges and Prosecutors; (ii) on 2 November 2022, the KPC recorded the decision to reject the Applicant’s request for the dismissal of three (3) members of the Investigation Panel, as well as obliged the latter to continue with the investigation and submit the written report within the specified deadline; while (iii) on 29 November 2022, the KPC approved the investigation report as grounded and as a consequence imposed on the Applicant the disciplinary sanction “Public written reprimand“. This decision was upheld by the Supreme Court.

In his Referral submitted to the Court, the Applicant alleged that the KPC and the Supreme Court violated his constitutional right to a fair and impartial trial guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights, since they did not reason their decisions, respectively, they did not consider his appealing allegations at all, which were related, among other things, (i) with the legal competence of the Chair of the KPC to replace the member of the Investigation Panel; (ii) the legality of the suspension of the disciplinary proceedings while the case was being handled in relation to the conflict of interest in the APC; (iii) with the claim that the mandate of the Investigation Panel had expired as a result of the expiration of the legal deadline for undertaking investigation actions; as well as (iv) proceeding with the report of the Investigation Panel in the KPC, whereas the latter had not yet rendered a decision regarding the request for the exclusion of the members of this panel.

In order to address the Applicant’s allegations, the Court first (i) elaborated the general principles regarding the right to a reasoned court decision, as guaranteed by Article 31 [Right to Fair and Impartial Trial] in conjunction with Article 6 (Right to a fair trial) of the European Convention for the Protection of Human Rights; and (ii) then applied the same to the circumstances of the present case. In this context and according to the general principles and relevant applicable provisions, elaborated in detail in the Judgment, the Court assessed that the Supreme Court, by the contested decision, did not address the essential allegations raised by the Applicant that were related, among others, to (i) the legality of the composition of the Investigation Panel; (ii) suspension of the disciplinary proceedings; as well as (iii) deciding the case by the Investigation Panel outside the legal deadline. Therefore, the Court, in order for the decision of the Supreme Court to be in accordance with the Applicant’s right to a reasoned court decision, remanded the latter for reconsideration to the Supreme Court.

The Judgment clarifies that the findings of the Court in this Judgment relate only to procedural guarantees, namely the Applicant’s right to an impartial and independent judicial process in the context of a reasoned court decision. The Judgment does not prejudge the epilogue of further court proceedings. Furthermore, the Judgment emphasizes the fact that the Applicant, namely the prosecutors, are clothed with authority of exercising an official duty, which entails high responsibilities in the context of the administration of justice within the legal system of the Republic of Kosovo. The duties and competencies of prosecutors include the obligation to exercise the function independently, impartially, fairly and objectively, applying the highest standards of care, honesty and professional conduct, in order to preserve the integrity of the institution, including applying the key principle in justice of ensuring equal treatment before the law, without discrimination of any kind, respecting the rights and freedoms of citizens established by the Constitution of the Republic of Kosovo and international instruments, which are directly applied in the Republic of Kosovo.