Constitutional Court

KI110/19, Applicant: Fisnik Baftijari, Referral for constitutional review of Judgment Pml.no.123/2019 of the Supreme Court of the Republic of Kosovo, of 14 May 2019

KI110/19, Resolution on Inadmissibility, adopted on 8 October 2019, published on 7 November 2019

Keywords: individual referral, manifestly ill-founded, inadmissible referral.

The subject matter of the Referral was the constitutional review of the challenged Decision of the Supreme Court, which as alleged by the Applicant has violated his constitutional rights and freedoms guaranteed by Articles 30 [Rights of the Accused], 31 [Right to Fair and Impartial Trial], 24 [Equality before the Law], 34 [Right not to be Tried Twice for the same Criminal Act] of the Constitution.

Among other things, the Applicant alleges that the criminal offense of unlawful occupation of real property lacks the element of the offence, namely there is no arbitrary occupation. According to the Applicant he alleges that the admission of the criminal act was done under intimidation and by the insistence of his defence counsel in contradiction with the lawyer’s professional ethics, namely the guilty plea has resulted in a violation of Article 30 paragraph 6 of the Constitution. In the end he claims that within the meaning of Article 34 [Right not to be Tried Twice for the same Criminal Act] of the Constitution, the regular courts failed to take into account the Decision [P.no. 208/12] of 30 December 2014, whereby the criminal lawsuit of the Subsidiary Prosecutor Bu.M (now the deceased spouse of B.M., the other party to the proceedings) was dismissed.

In this context, with regard to the first allegation concerning the allegations for violation of Articles 30 and 31 of the Constitution, the Court notes that in the Applicant’s case, the regular courts have reached their conclusions by giving sufficient reasons and justifications which this Court as well does not consider it arbitrary, that the guilty plea was entered within procedural guarantees. As to the allegation for a violation of Article 24, the Court notes that the Applicant has failed to present any facts and has not substantiated the allegation for violation of his rights guaranteed by Article 24 of the Constitution. Finally, the Applicant’s allegation that the Court did not take into account the Decision [P.no. 208/12] of 30 December 2014, through whereby the criminal lawsuit of the Subsidiary Prosecutor Bu.M (now the late spouse of the other party to the proceedings, B.M.) was dismissed, according to the Court’s assessment, does not stand as the Applicant has not presented any facts and has not proved the allegation for a violation of his rights guaranteed by Article 34 of the Constitution.

In these circumstances, the Court considers that the Applicant has neither substantiated with evidence nor sufficiently justified on constitutional grounds his allegation for a violation of the human rights and freedoms guaranteed by the Constitution, specifically, for a violation of Article 24, 30, 31 and 34 of the Constitution, because the facts presented by him in no way show that the regular courts have denied him the rights guaranteed by the Constitution.

Accordingly, the Referral is manifestly ill-founded on constitutional grounds and therefore inadmissible as established by Article 113. 7 of the Constitution and further specified by the admissibility criteria, namely Rule 39 (2) of the Rules of Procedure.