Constitutional Court

KI193/19, Applicant: Salih Mekaj, Constitutional review of Judgment Pml.no.36 / 2019 of the Supreme Court, of 5 June 2019
KI193/18, Judgment of 17 December 2020, published on 31 December 2020

Keywords: individual referral, criminal proceedings, right to a fair trial, admissible referral, violation of Article 31 of the Constitution

The Applicant challenged before the Constitutional Court the constitutionality of Judgment Pml.no.36/2019 of the Supreme Court, of 5 June 2019, alleging a violation of his rights guaranteed by Articles 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo, and Article 6 [Right to a fair trial] of the European Convention on Human Rights. The Applicant alleged before the Court that the Supreme Court violated his rights guaranteed by Article 31 [Right to a Fair Trial] of the Constitution, Article 6.1 of the Convention, because: “[…]when deciding on the Request for protection of legality, filed by the State Prosecutor, the Supreme Court was obliged to […] in addition to the Request of the State Prosecutor review my Response as an opposing party in the proceedings, as well as I, as a defendant, was entitled to present my arguments against the Request for protection of legality and the court was obliged to examine them with the same attention as the arguments of the other party, which in this case is the Prosecution of State, but my Response not only has not been reviewed at all but it is not even mentioned in the entire challenged Judgment that I have submitted a response to the Request of the State Prosecution and this not only violates the principle of equality of the parties to the proceedings, but also constitutes an arbitrary conduct on the part of the Court. ”
The Court first examined whether the Referral fulfills the admissibility requirements for a meritorious review of the Referral, as set out in the Constitution and further specified in the Law on the Constitutional Court and the Rules of Procedure of the Court. The Court, after having considered the merits of the Referral, concluded that the obligation of the courts to notify the opposing party, about the exercise of legal remedies against them, is not an aim in itself. This obligation is a necessary procedural step to enable the parties to be treated equally, to have the opportunity to challenge the opposing party’s allegations and arguments, and to present their case effectively. The Court further added that the regular courts should not be satisfied with the mere fact that the parties have received the notification about the exercise of a legal remedy against them, but they (the regular courts) should assure the parties that their views and arguments have been duly reviewed and assessed so that they are guaranted the most effective protection against the allegations rasied against them. On the contrary, failure to review their objections and arguments automatically places them at a considerable disadvantage vis-à-vis the opponent (see, ECtHR, in the cases Ofrer and Hopfinger, nos. 524/59 and 617/59, 19.12. 60, Yearbook 6, pg. 680, which states that each party must be given a reasonable opportunity to present his/her case under conditions that do not place him/her at a substantial disadvantage vis-à-vis the opponent).
In this sense, the Court considered that the Supreme Court has failed to guarantee the application of the principle of equality of arms and the principle of adversarial proceedings, because the Applicant has been placed at a significant disadvantage vis-à-vis the State Prosecutor, after having been deprived of the opportunity to have a real and substantive confrontation with the arguments and allegations presented by the State Prosecutor, as an opposing party in the proceedings. Accordingly, the Court finds that the challenged Judgment of the Supreme Court was taken contrary to the principle of equality of arms and the principle of adversarial proceedings, and as a result of this found that both the principle of having the party heard and the right to a reasonable judicial decision were also violated..