Constitutional Court

KI128/20, Applicant: Ramadan Sopaj, Constitutional review of Judgment PML. No. 137/2020 of the Supreme Court of Kosovo, of 15 June 2020

KI128/20, Resolution on Inadmissibility, of 10 November 2020, published on 29 December 2020

Keywords: individual referral, criminal charge, composition of the trial panel, assessment of evidence,  manifestly ill-founded referral

The Basic Court in Gjakova, Department for Minors (hereinafter the Basic Court), by Judgment [PKR. No. 3/2019], found the Applicant guilty of the criminal offense under paragraph 1, subparagraph 1.3 of Article 235 [Sexual abuse of persons under the age of sixteen (16) years] of the Criminal Code of the Republic of Kosovo No. 04/L-082 (hereinafter: the CCRK), because on 29 November 2018, at the Family Medicine Center in Malisheva (hereinafter: the FMC) he sexually abused a person under the age of sixteen (16), during the visit of the minor F.H. to the FMC. The judgment of the Basic Court was upheld by the Court of Appeals and the Supreme Court.

The Applicant alleged before the Constitutional Court that the Judgment of the Supreme Court [PML. No. 137/2020], in conjunction with the Judgment [PAKR. No. 25/2020] of the Court of Appeals and the Judgment [PKR. No. 3/2019] of the Basic Court violate his rights guaranteed by Articles 22 [Direct Applicability of International Agreements and Instruments], 24 [Equality Before the Law] and 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the ECHR. The Applicant also requested the Court to impose an interim measure, namely, to postpone the execution of the decision on sentence.

The Court noted that the Applicant’s allegations relate to the way the regular courts have interpreted the CCRK, the Juvenile Justice Code, and the way  they assessed the evidence during the review of his case, specifically regarding the: a) the composition of the trial panel; b) contradictory statements of the injured party and experts regarding the guilt of the Applicant; and, c) failure to fulfil the “subjective” element of the criminal offense.

The Constitutional Court, after assessing the allegations of the Applicant, found that the Applicant has not substantiated his allegation of violation of the right to fair and impartial trial guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR, as well as the right to equality before the law guaranteed by Article 24 of the Constitution in the procedure which found him guilty of the criminal offense – sexual abuse of a person under the age of sixteen (16) years. The Court also rejected the Applicant’s request for interim measure. Therefore, in accordance with Article 113.7 of the Constitution, Articles 20, 27 and 48 of the Law, and in accordance with Rule 39 (2) of the Rules of Procedure, the Court declared the Applicant’s Referral as manifestly ill-founded.