Constitutional Court

KI119/17 – Constitutional review of Judgment PML. No. 41/2017 of the Supreme Court of Kosovo of 03 July 2017

 KI119/17, Applicant Gentian Rexhepi

Resolution on Inadmissibility of 3 April 2019

Keywords: Individual referral, manifestly ill-founded, substantial non-exhaustion of legal remedies

 The Referral was submitted by Gentian Rexhepi who was found guilty of the criminal offense of aggravated murder and the criminal offense of unauthorized ownership, control, possession or use of weapons. The regular courts sentenced the Applicant to a term of imprisonment of 16 (sixteen) years and, finally, the Supreme Court upheld their decision-making by rejecting as ungrounded the requests for protection of legality submitted by the Applicant and his defense counsel.

Before the Constitutional Court, the Applicant requested the constitutional review of the challenged Judgment of the Supreme Court with the allegation that the latter was rendered in violation of the right to fair and impartial trial guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR. In this regard, the Applicant raised allegations of non-reasoning of a court decision and disregard of the principle of equality of arms. Each of these allegations of the Applicant were widely reviewed by the Court. (See paragraphs 46-78 of the Resolution on Inadmissibility on allegations of non-reasoning of a court decision and paragraphs 79-88 of the latter with respect to allegations of equality of arms).

The issue of expertise, which was reviewed in all court instances and reflected in their respective decisions – which are also reflected in the decision of the Constitutional Court,  constituted one of the main allegations raised in relation to the request for a reasoned court decision. Beyond it, the Applicant also claimed a lack of reasoning regarding the impartiality of the witness N. U.; non-hearing of the witness/main doctor who performed the autopsy and failure to make reconstruction with the participation of the doctor who performed the autopsy; the impartiality of the presiding judge; and the admissibility of the police report of 3 January 2010 as evidence in the Court.

The Court, referring to the guarantees provided in Article 31 of the Constitution in conjunction with Article 6 of the ECHR, the case law of the ECtHR and its case law, found that the Applicant’s Referral was manifestly ill-founded on constitutional basis because he did not prove and sufficiently substantiate his allegations of constitutional violation.

Exceptionally by rejecting the Referral in its entirety as manifestly ill-founded on constitutional basis, the Court considered that as regards the two specific allegations raised by the Applicant in the context of the allegations of lack of a reasoned court decision, namely the allegation regarding i) the impartiality of the witness N.U.; and (ii) the impartiality of the presiding judge, the Applicant’s referral is to be rejected as inadmissible because of substantial non-exhaustion of all legal remedies – which implied the fact that the Applicant has never raised such allegations before the regular courts as required by the doctrine of the principle of subsidiarity.