Constitutional Court

KI56/21, Applicant: Emrush Berisha, Constitutional review of Judgment Pml. No. 275/20, of the Supreme Court, of 9 November 2020

KI56/21, Resolution on Inadmissibility of 7 October 2021, published on 29 October 2021

Keywords: individual referral, right to fair and impartial trial, criminal procedure 

It is noted from the case file that the Applicant had caused a traffic accident, and as a result, the accident had been fatal for other persons. Consequently, on 20 June 2019, the Basic Prosecution in Prishtina – General Department, had filed an indictment [PP. II. no. 4232/19] against the Applicant, due to the criminal offense of Endangering public traffic under Article 370, par. 9 and 8 in conjunction with paragraph 6 and paragraph 1 of the Criminal Code of the Republic of Kosovo. The Basic Court in Prishtina, had found the Applicant guilty of committing the criminal offense of Endangering public traffic under Article 370, par. 9 and 8 in conjunction with Article 6 and 1 of the CCRK, and was sentenced to imprisonment for a period of 3 (three) years and 6 (six) months, as well as an accessory punishment of seizure of driving license, has been imposed on him. The Applicant had filed an appeal against the decision of the Basic Court, which appeal was approved and the Judgment of the Basic Court was amended where the sentence of imprisonment was reduced to 2 years and 6 months, as well as the seizure of the driving license for a period of 1 (one) year. Furthermore, the Applicant had submitted a request for protection of legality to the Supreme Court, which the latter rejected as ungrounded.

The Applicant alleged before the Court violation of the right to fair and impartial trial guaranteed by the Constitution and the European Convention on Human Rights, because according to the allegation, the Supreme Court in the case of decision-making had not analysed his request at all, to prove correctly and accurately all the evidence found in the case file. In addition, according to the Applicant, the regular courts should have identified violations of criminal law related to the expertise of traffic experts and come to a fair and accurate conclusion, given the fact that after pleading guilty, the pieces of evidence that are found in the case file have not been properly assessed.

In assessing the Applicant’s allegations, the Court, among others, reiterated that the Constitutional Court does not have the jurisdiction to decide whether an Applicant was guilty of committing a criminal offense or not. Nor does it have jurisdiction to assess whether the factual situation was correctly determined or to assess whether the judges of the regular courts have had sufficient evidence to establish the guilt of an Applicant. In this sense, the Court further reiterates that it is not its task under the Constitution to act as a “fourth instance” court in respect of the decisions taken by the regular courts. In fact, it is the role of the regular courts to interpret and apply the pertinent rules of both procedural and substantive law. The Court found that the challenged decision of the Supreme Court in relation to the decisions of the lower instance courts was sufficiently reasoned and consequently, meets the criteria of a reasoned court decision, set out in Article 31 of the Constitution, in conjunction with Article 6.1 of the ECHR. Furthermore, the Court notes that the regular courts have carefully treated the Applicant’s allegations concerning pleading guilty and taking into consideration of the expertise, further arguing that the Applicant had pleaded guilty in the presence of his defence counsel, having previously understood and been notified by the court, regarding the nature and consequences of admitting the commission of the criminal offense. Whereas with regard to taking into consideration of the second expertise, the Court noted that this expertise was taken into account and evaluated by the Court of Appeals, and based on which the decision on sentencing of the Applicant was amended by reducing the sentence imposed by the Basic Court.

Consequently and based on the explanations given in the published Decision, the Court found that the allegations of the Applicant for violation of the right to fair and impartial trial, guaranteed by Article 31 of the Constitution and Article 6 of the ECHR  due to erroneous determination of the factual situation and erroneous interpretation and application of the applicable law, qualify as allegations of “fourth instance”; and as such, these allegations of the Applicant are manifestly ill-founded on constitutional basis, as set out in paragraph (2) of Rule 39.