Constitutional Court

KI74/22, Applicant: Zoran Đokić, Constitutional review of Judgment [Pml. no. 19/2022] of the Supreme Court, of 15 February 2022

KI74/22, Judgment of 7 November 2023, published on 11 December 2023

Keywords: individual referral, admissible referral, right to fair and impartial trial, expanded indictment, examination of witnesses, rights of defense

The Constitutional Court of the Republic of Kosovo has decided regarding the Referral in case KI74/22, with Applicant Zoran  Ðokić, for the constitutional review of the Judgment [Pml. no. 19/2022] of 15 February 2022 of the Supreme Court of the Republic of Kosovo, in conjunction with the Judgment [APS. no. 22/2021] of 12 October 2021 of the Court of Appeals and the Judgment [ST. no. 15/19] of 11 February 2021 of the Basic Court in Prishtina, 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: (i) the Referral is admissible; (ii) to hold, with seven (7) votes for and one (1) against, the Judgment [Pml. no. 19/2022] of the Supreme Court of 15 February 2022; the Judgment [APS. no. 22/2021] of the Court of Appeals  of 12 October 2021 and the Judgment [ST. no. 15/19] of the Basic Court  of 11 February 2021, are not contrary to paragraphs 1, 2 and 4 of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo and Article 6 (3) (a), (b) and (d) (Right to a fair trial) of the European Convention on Human Rights.

The circumstances of the present case are related to the indictment that the Special Prosecutor’s Office of the Republic of Kosovo brought against the Applicant for war crimes, in violation of Article 3 (Conflicts not of an international character) of the Geneva Conventions of 12 August  1949 and the Additional Protocols of 1977 and 2005, based on paragraph 1 of Article 152 (War crimes in serious violation of Article 3 Common to the Geneva Conventions) of the Criminal Code no. 04/L-82 of the Republic of Kosovo and Article 142 of the Criminal Law of Socialist Federal Republic of Yugoslavia. The Basic Court in Prishtina found the Applicant guilty, among other things, because, in co-perpetration, he had committed the criminal offense of War Crimes Against the Civilian Population under Article 142 in conjunction with Article 22 of the Criminal Law of the SFRY, in conjunction with Article 3 of the Geneva Convention and Article 4 (Fundamental guarantees) of the Protocol Additional to the Geneva Conventions of 12 August  1949 Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, and consequently sentenced him to imprisonment in duration of twelve (12) years. The Applicant submitted an appeal to the Court of Appeals against the Judgment of the Basic Court, claiming essential violations of the provisions of the criminal procedure, erroneous determination of factual situation, violation of the criminal law and the decision on punishment. The Applicant, among other things, complained about the expansion of the indictment and the relevant witnesses, requesting to be acquitted of the charge. The Court of Appeals and the Supreme Court, acting on the appeal and the request for the protection of legality, respectively, upheld the contested Judgment of the Basic Court.

Before the Court, the Applicant alleged a violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with paragraph 3 (a) and (d) of Article 6 (Right to a fair trial) of the European Convention on Human Rights, emphasizing, among other things, that (i) the prosecution and the regular courts did not give him the opportunity to declare about the amended and expanded indictment against him; (ii) investigative actions, namely the questioning of witnesses, injured parties and identification of the Applicant, were carried out without the presence of the defense counsel; (iii) according to paragraph 2 of Article 288 (Requests after Main Trial Scheduled) of the Code no. 04/L-123 of the Criminal Procedure of the Republic of Kosovo, the proposal of new witnesses can only be accepted if the proposed witnesses were not known at the time of the second initial hearing, which in his case was not the case; and (iv) the regular courts did not hear the witnesses who would have testified in favor of the Applicant or at least their testimony would have been neutral.

The Court assessed the Applicant’s allegations within the framework of the right to fair and impartial trial, as 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 and in this context (i) first elaborated the general principles regarding the right to be informed about the amendment and extension of the indictment, the rights of defense in criminal proceedings, the right to confrontation of witnesses and hearing of witnesses in favor of the Applicant, as guaranteed by the aforementioned acts, and then (ii) applied the latter to the circumstances of the present case.

In this context and according to the elaborations detailed in the Judgment, the Court assessed that: (i) the prosecutor has timely notified the defense of the Applicant regarding the expansion of the indictment, which was also established during the court process by the Court of Appeals that the possibility of practical exercise and effective defense against the expansion of the indictment was given to the defense of the Applicant; (ii) the expansion of the indictment against the Applicant did not change the qualification of the criminal offense and did not change the role of the Applicant in committing the criminal offense; (iii) the regular courts explained that the witnesses were confronted with the Applicant and/or his defense and that they identified him as having been present in certain situations when the criminal offenses were committed; (iv) the regular courts have not denied the Applicant’s right to propose new witnesses, but they have emphasized that the proposal of witnesses also applies to the injured parties, which is in accordance with the principle of “equality of arms” as guaranteed by the right to fair and impartial trial; (v) the regular courts have also heard the witnesses in favor of the Applicant, while the weight given to the testimony of those witnesses is a matter of the jurisdiction and scope of the regular courts.