Constitutional Court

Case no. KI73/20, Applicant: Esat Bajrami, Constitutional review of Judgment Pml. No. 117/2020 of the Supreme Court of Kosovo of 24 April 2020 

Keywords: Individual referral, right to liberty and security, extension of detention pending trial, non-reasoning of decisions,  manifestly ill-founded referral   

On 26 June 2018, the Basic Prosecution in Gjakova-Department for Serious Crimes, filed the indictment [PP/I. No. 99/2017], against the Applicant, due to a grounded suspicion that he has committed two criminal offenses, and that: 1) the criminal offense of murder under Article 178 [Murder] and 2) the criminal offense of Unauthorized Ownership, Control or Possession of Weapons under Article 374 [Unauthorized Ownership, Control or Possession of Weapons] of the Criminal Code No. 04/L-082 of the Republic of Kosovo (hereinafter: the CCRK).

In his Referral, the Applicant expressly challenges the decisions of the regular courts regarding the extension of detention on remand against him, namely the Decision [PKR. No. 51/19] of the Basic Court in Gjakova of 30 March 2020, the Decision [PN1. No. 392/2020], of the Court of Appeals of 6 April 2020 and the Judgment [Pml. No. 117/2020] of the Supreme Court of 24 April 2020. The latter alleges that the challenged decisions violate his right guaranteed by Article 29 [Right to Liberty and Security] and Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 5 [Right to liberty and security] and 6 [Right to a fair trial] of the ECHR.

In the Applicant’s case, the Court recalls that the Basic Court in Gjakova referring to Article 187 of the CPCK held that in addition to the grounded suspicion of having committed the criminal offense, it also found that there was a legal basis for the extension of the detention on remand for the following reasons: 1) evidence that has been examined during past court hearings such as the statements of witnesses, experts and other material evidence; 2) taking into account the gravity of the criminal offenses which he is charged with; 3) real reason to believe that he can use his stay at liberty to hide or flee in order to avoid criminal liability; 4) the risk that his stay on the run will impede the course of the criminal proceedings by affecting the witnesses who are proposed to be heard during the court hearing; 5) assessment that other alternative measures are insufficient at this stage of the procedure taking into account the aforementioned  elaborations.  This reasoning of the Basic Court was upheld by the Court of Appeals, as well as by the Supreme Court through the challenged Judgment.

Therefore, the Court considers that the decisions of the regular courts were reasoned and fair when deciding on the issue of detention on remand of the Applicant, therefore, it cannot be said that they were not reasoned in accordance with Article 29 of the Constitution in conjunction with Article 5 of the Convention or, the proceedings viewed in their entirety, have been in any way arbitrary (see, mutatis mutandis, ECtHR Judgment of 14 June 2016 Merabishvili v. Georgia, No. 72508/13, paragraph 87).

Regarding the Applicant’s allegation of violation of Article 31 of the Constitution with regard to the length of the detention measure pending his conviction, the Court finds that they do not fall within the scope of Article 31 of the Constitution.

Finally, the Court considers that the Referral is manifestly ill-founded on constitutional basis and is to be declared inadmissible pursuant to paragraph (2) of Rule 39 of the Rules of Procedure.