Constitutional Court

Cases no. KI87/18 i KI11/19, Applicant: Muhamet Idrizi, Constitutional review of the Judgment PML. no. 226/2018 of the Supreme Court of Kosovo, of 16 October 2018, and Judgment PML. no. 293/2018 of the Supreme Court of Kosovo, of  3 December 2018

KI87/18 and KI11/19, Judgment of 29 July 2019, published on 29 August 2019.

Keywords: individual referral, criminal charges, composition of the Court panel, right to a fair trial, impartiality of the Court

 The Applicant, with the Judgment [P.nr.25/2009] of the District Court, of 8 June 2009, firstly was acquitted of the charges related to the commission of a criminal act from Article 147 (Aggravated murder) in conjunction with Articles 20 (Attempt) and 23 (Co-perpetration). This Judgment was annulled with the Decision [AP. nr. 393/2012] of the Supreme Court of Kosovo of 7 March 2012, and the case was returned for a retrial. During 2017, by the Judgment [PKR.nr.107/2012] of the Basic Court, the Applicant was sentenced to three (3) years of imprisonment due to a commission of the aforementioned criminal act.

The Judgment of the Basic Court was confirmed also by the Court of Appeals. Against the latter, two requests for the protection of legality were filed with the Supreme Court. The first request was submitted by the defense lawyer of the Applicant upon which the Supreme Court rendered a decision [PML. nr. 226/2018] of 18 October 2018, in which the request was rejected as ungrounded. The second request was submitted by the Applicant himself, and, upon that request the Supreme Court rendered the Decision [PML. nr. 293/2018] of 3 December 2018, whereby the request for protection of legality was also rejected as ungrounded.

There were two referrals submitted before the Court for the constitutional review of the respective Judgments. The first one, namely Referral KI187/18 was submitted by the defense lawyer of the Applicant and the subject matter of the Referral was the constitutional review of the Judgment [PML. nr. 226/2018] of the Supreme Court, of 16 October 2018. On the other hand, the second, namely Referral KI11/19 was submitted by the Applicant himself and the subject matter of the Referral was the constitutional review of the Judgment [PML. nr. 293/2018] of the Supreme Court of 3 December 2018.

In relation to Referral KI187/18, the Applicant alleged before the Court that the challenged Judgment was rendered in serious violation of the provisions of the criminal procedure. In relation to this, the Court noted that the Applicant in its Referral KI187/18 did not explain which rights and fundamental freedoms guaranteed by the Constitution he alleges to have been violated with the acts of the public authorities, namely Judgment [PML. nr. 226/18] of the Supreme Court, of 16 October 2018. Moreover, the Applicant did not exactly explain the facts and allegations related to the violation of the constitutional rights. Therefore, the Court concluded that Referral KI187/19, does not fulfill the admissibility requirements as stipulated in the Article 48 of the Law and item (d) of the paragraph 1 of Rule 39 of the Rules of Procedure, and therefore declared this Referral inadmissible.

In relation to Referral KI11/19, the Applicant challenged the Judgment [PML.nr.293/2018] of the Supreme Court of 3 December 2018, stating that, inter alia, the Judgment was rendered by the partial Court in violation of the Article 31 of the Constitution in conjunction with Article 6 ECHR. The Court concluded that the Referral fulfils the admissibility requirements and considered the merits of the case.

While considering the merits of the case, the Court, inter alia,  considered (i) the basic principles of the European Court of Human Rights in relation to the criteria for Court impartiality review; (ii) concept of the subjective and objective impartiality of the Court; (iii) case-law of the European Court of Human Rights in relation to the Court impartiality review, namely the “legitimate doubts” concept and the facts that the same have to be “objectively justified” in order to ascertain the impartiality of a court; (iv) the relevant case-law regarding the participation of one Judge in different phases of the same criminal matter; and finally concluded that (v) the Judgment  [PML.nr.293/2018] of the Supreme Court, of 3 December 2018, was rendered by a composition of the Panel in which the Judge who was in the previous phases of that same criminal matter was a part of the decision-making panels, and thus resulting in “legitimate doubts” of the impartiality of the court, which in the Court’s assessment, under the circumstances of the present case, are “objectively justified”.

Therefore, the Constitutional Court declared the Judgment [PML.nr.293/2018] of the Supreme Court of 3 December 2018, invalid. On the other hand, the Court rejected the request of the Applicant for interim measure, stating that, inter alia, the Judgment [PAKR.nr.108/2018] of the Court of Appeals, of 19 April 2018, in the circumstances of this particular case, is final and enforceable, until otherwise decided by the Supreme Court.