Constitutional Court

KI110/20, Applicant: Et-hem Bokshi, Constitutional review of Judgment Plm. No. 76/2020 of the Supreme Court of 8 April 2020

KI110/20, resolution of 3 November 2021, published on

Keywords: individual referral, principle Ne bis in idem, Right to fair and impartial trial, protection of property 

The circumstances of the present case relate to the criminal proceedings conducted against the Applicant in relation to tax evasion, namely non-presentation of the actual turnover realized within the activities of the business entity PKP “Marigona” which is co-owned by the Applicant. In relation to this case, initially an administrative procedure was initiated with TAK, which due to non-presentation of the actual turnover realized in the framework of carrying out activities, it obliged to pay that part of income tax and has fined the entity PKP “Marigona” in co-ownership of the Applicant. After that, in relation to the same offense, the Basic Prosecution in Gjakova filed an indictment against the Applicant and his business partner, for the criminal offense of tax evasion in co-perpetration. This criminal procedure, which was the subject of judicial control, where, first, the Basic Court found the Applicant and his business partner guilty of committing the criminal offense, for which it imposed a fine and a suspended imprisonment sentence. In the appeal procedure, the Court of Appeals rejected as ungrounded the Applicant’s appeal and upheld the Judgment of the Basic Court in its entirety. The Supreme Court also rejected the Applicant’s request for protection of legality, finding that the judgments of the lower courts were fair and lawful.

The Applicant challenged the Judgment of the Supreme Court before the Constitutional Court claiming i. violation of the right guaranteed by Article 31 of the Constitution and Article 6 of the ECHR in relation to the principle ne bis idem; ii. violation of the right under Article 31 of the Constitution and Article 6 of the ECHR in relation to the principle of equality of arms; iii. violation of the rights guaranteed by Article 31 of the Constitution and Article 6 of the ECHR in relation to the erroneous or arbitrary manner of application of legal provisions and iv. violation of the rights guaranteed by Article 1 of Protocol no. 1 of the ECHR.

With regard to the alleged violation of the rights guaranteed by Article 31 of the Constitution and Article 6 of the ECHR in relation to the principle ne bis in idem, the Court found that these allegations qualify as allegations of “apparent or evident absence of violation” ; and as such, declared these allegations of the Applicant as manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 39.

With regard to the alleged violation of the rights guaranteed by Article 31 of the Constitution and Article 6 of the ECHR in connection with the principle of equality of arms, the Court found that this part of the allegations qualifies as “unsubstantiated or unsupported” allegations; and as such, declared these allegations of the Applicant as manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 39.

With regard to the alleged violation of the right to property guaranteed by Article 1 of Protocol no. 1 of the ECHR, the Court found that this allegation of the Applicant falls into the category of “unsubstantiated or unsupported” allegations, and as such, the Court on a constitutional basis declared it as manifestly ill-founded, and accordingly, inadmissible.

Therefore, the Court concludes that the Referral must be declared in its entirety as manifestly ill-founded, and consequently, inadmissible on constitutional basis, in accordance with Rule 39 (2) of the Rules of Procedure.