Constitutional Court

Cases No. KI176/18, KI183/18 and KI06/19, Applicants: Zeqir Demaku, Jahir Demaku, Fadil Demaku, Nexhat Demaku, Isni Thaçi, Bashkim Demaj, Selman Demaj, Driton Demaj and Agim Demaj, constitutional review of Judgment PML. Pml. No. 158/2018 of the Supreme Court of Kosovo of 26 September 2018

KI176/18, KI183/18 and KI06/19, Resolution of 13 November 2019, published on 9 December 2019

Keywords: individual referral, criminal charge, composition of the trial panel, right to a fair trial – right to a reasoned decision, contradictory decisions

The Applicants were found guilty by the Basic Court in Mitrovica (Judgment P58/14) for the commission of the criminal offenses sanctioned by Article 152 [War Crimes in Serious Violation of Article 3 Common to the Geneva Conventions] in conjunction with Article 31 [Co-perpetration] of the Criminal Code of the Republic of Kosovo (the CCRK). The Applicants filed appeal against the Judgment of the Basic Court, challenging, inter alia, the composition of the trial panel of the Basic Court and the evidence of expert witnesses. The Court of Appeals (Judgment PAKR No. 456/15) rejected the parties’ appeals and upheld the Judgment of the Basic Court. The Applicants filed a request for protection of legality – against the Judgment of the Court of Appeals – with the Supreme Court of Kosovo, alleging, inter alia, that the trial panel of the Basic Court was composed in violation of the rules applicable to the appointment of judges to the trial panels.

The request for protection of legality was rejected by the Supreme Court through Judgment Pml. KZZ. No. 322/2016, as ungrounded. Regarding this Judgment, some of the Applicants of Referral KI176/18, KI183/18 and KI06/19, submitted referrals KI 146/17, KI 147/17, KI 148/17, KI 149/17, and 150/17 to the Constitutional Court. On 30 May 2018, the Constitutional Court by Judgment in cases No. KI146/17, KI147/17, KI148/17, KI149/17 and KI150/17, found violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution and paragraph 1, of Article 6 (Right to a fair trial) of the ECHR, holding that Judgment Pml. KZZ. 322/2016 of the Supreme Court, failed to provide a thorough assessment and justification as to whether the appointment of judges to the trial panel in the case of the Applicants in the Basic Court was in accordance with the entirety of the applicable legal provisions.

In implementing the Judgment of the Constitutional Court, on 26 September 2018, the Supreme Court rendered Judgment Pml. No. 158/2018, in which it reconsidered the requests for protection of legality of the Applicants based on the findings of the Judgment of the Court in case KI146/17, KI147/17, KI148/18, KI149/18 and KI150/18. The Supreme Court rejected as ungrounded the requests for protection of legality of the Applicants.

The Applicants, regarding the abovementioned Judgment, before the Constitutional Court, in Referral KI176/18, KI183/18 and KI06/19, alleged a violation of their individual rights guaranteed by Article 24 [Equality Before the Law], Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with Article 6 (Right to a fair trial) of the ECHR, and Article 53 [Interpretation of Human Rights Provisions] of the Constitution.

After dealing with the allegations of the Applicants, the Court found that:

(i)           The Supreme Court addressed the Applicants’ allegations regarding the appointment of the trial panel of the Basic Court, and, therefore, assessed that such allegations are manifestly ill-founded on constitutional basis, and as such are to be rejected as inadmissible, in accordance with Article 113.7 of the Constitution, and Rule 39 (2) of the Rules of Procedure;

(ii)          The allegations of the Applicant of Referral KI183/18 of violations of Article 24 [Equality Before the Law] of the Constitution are manifestly ill-founded on constitutional basis, and as such are to be rejected as inadmissible, pursuant to Article 113.7 of the Constitution and Rule 39 (2) of the Rules of Procedure;

(iii)        Applicants of Referral KI176/18, are not authorized party to raise a violation of Article 29 of the Constitution on behalf of the person S.S. as defined by Article 113, paragraphs 1 and 7 of the Constitution, Article 47 of the Law, and Rule 39 (1) (a) of the Rules of Procedure.