Constitutional Court

KI77/20, Applicant: Kujtim Zarari, Constitutional review of  Judgment PA1. no. 1547/2019 of the Court of Appeals of Kosovo, of 2 March 2020.

KI77/20, Resolution on Inadmissibility, adopted on 11 November 2020

Keywords: individual referral, locus standi of heirs, inadmissible referral, incompatible ratione materiae with the Constitution.

1. The circumstances of the present case relate to a criminal procedure, in which the Applicant had the capacity of the injured party. The Applicant, in his capacity of an employee of the Main Family Medicine Center in Gjakova (hereinafter: MFMC) was attacked at the MFMC facility by person M.Gj., who also was employed at the MFMC, on which occasion the Applicant sustained bodily injuries. Following the initiation of the criminal proceedings, namely the filing of the Indictment of the Basic Prosecution in Gjakova, of 10 September 2018, whereby person M.Gj. was accused of having  committed  the criminal offence of light bodily injury, the Applicant had filed a separate submission with the Basic Prosecution in Gjakova requesting  the requalification of the  criminal offense of “Light bodily injury” , by  arguing  that the  actions of the accused M.Gj. manifested  elements of the criminal offence “Attacking official persons performing official duties”. On 7 November 2019, the Basic Court in Gjakova through Judgment P.no.621/18: (i) found the person M.Gj. guilty of the criminal offence of “Light bodily injury”, and imposed on him a fine in a certain amount of money; and (ii) instructed the Applicant, in the capacity of the injured party, to pursue his legal property claim in a civil dispute. Following the Applicant’s appeal due to the decision on the criminal sanction and requalification of the criminal offence, the Court of Appeals by Judgment PA1.no.1547/2019, on 02 March 2020, rejected as unfounded the Applicant’s appeal and confirmed the Judgment of the Basic Court. On 5 May 2020, the Applicant submitted his Referral to the Constitutional Court. The Court, before having reviewed and decided on his Referral, was informed that the Applicant had passed away, and consequently  addressed the family of the deceased asking from them to confirm to the Court whether the family members/heirs who have a direct interest wish to continue with the the procedure of review of the Referral. On 14 September 2020, the Court received a letter from Ms. Sadete Zarari, maiden name Jerliu, the wife, respectively the widow of the late Mr. Zarari [the Applicant], whereby she notified the Court, that in the capacity of the heiress of the deceased she wishes to expresses her interest for the continuation of the examination of his Referral.

2. The court, in its initial assessment with respect to the locus standi of Mrs. Zarari, in order to continue with the review of the Applicant’s Referral, ascertained that she is an authorized party, and for practical reasons decided to refer to the deceased Mr. Kujtim Zarari as Applicant. Further, the Court decided to proceed with the review of the Referral as submitted by the Applicant on 5 May 2020.

3. The Applicant in his Referral has alleged that the Basic Court and the Court of Appeals by their findings in the challenged Judgments have violated his right guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution), in conjunction with Article 6 (Right to a fair trial) of the European Convention (hereianfter: the ECHR).

4. In assessing the admissibility of the Referral, the Court referred to its relevant case law which is based upon the case law of the European Court of Human Rights relating to the circumstances in which the Applicants allege violations of their fundamental rights and freedoms guaranteed by the Constitution as a result of the decisions of regular courts with respect to criminal proceedings against third parties. In the context of the Applicant’s Referral, and in accordance with its case law, the Court found that the circumstances of the present case involve allegations for violation of the Applicant’s fundamental rights and freedoms which relate to the outcome of the criminal proceedings, as a consequence of the “criminal charge” against a third person, whom the Basic Court had found guilty of committing a criminal offence, a decision that was also upheld by the Court of Appeals. Consequently, the Court found that the Applicant’s allegations for violation of his right to a fair trial do not fall within the scope of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, and are incompatible ratione materiae with the Constitution.