Constitutional Court

KI 01/19, Applicant: Fatos Rizvanolli, Constitutional review of Judgment PML. No. 242/2017 of the Supreme Court of Kosovo, of 30 April 2018

KI 01/19, Resolution on Inadmissibility, of 2 September 2020, published on 01 October 2020.

Keywords: individual referral, criminal procedure, right to  fair and impartial trial, right to privacy, no punishment without law, examination of witnesses, manifestly ill-founded referral

In the present case, the Basic Court in Ferizaj, by Judgment PKR-65/16, found the Applicant guilty and sentenced him to imprisonment in lenght of 7 (seven) years, for the criminal offence of “recruitment for terrorism in continuation and co-perpetration”, under Article 139, in conjunction with Article 31 of the CCK. In the sentence imposed, was included the time that the Applicant has spent in detention on remand, from 16 March 2016. The Applicant, without success, appealed against the conviction of the Basic Court because the judgment in question was upheld by the highest instances of the judiciary of the Republic of Kosovo, respectively by the Court of Appeals and the Supreme Court.

The Applicant complained before the Constitutional Court, inter alia, that during the proceedings in the regular courts the witnesses requested by him were not examined, there was violated the principle of no punishment without law and the right to privacy  because the prosecutors had not taken into consideration  the possibility of less intrusive measures in his private life.

With respect to the allegation foe examination of  witnesses, the Court found that the decisions of the regular courts regarding the allegation for hearing as witnesses the persons Z.Q. and Sh.A do not result to be tainted by arbitrariness or disproportionate because the Basic Court has found the “right balance” by accepting the hearing of persons B.K. and B.R. proposed by the defense of the Applicant, on the one hand, while it  refused to hear the persons Z.Q. and Sh.A, on the other hand. The Court also held that the Court of Appeals and the Supreme Court could have further elaborated on the issue of witness hearing – but this in itself does not make the process unconstitutional because, on the basis of the available documents, it results that the Applicant has been given a response in substance to his allegation for violation of Article 31.4 of the Constitution in conjunction with Article 6 (3) (d) of the ECHR.

As for the allegation for violation of the principle of no-punishment without law, the Court found that the interpretation by the regular courts of the relevant provisions of the CCK: (i) does not result to have been read outside the context of the criminal provisions, or has been unreasonable and arbitrary; and, (ii) the regular courts have clarified the criminal liability of the Applicant, based on the provision of Article 139 CCK. Therefore, the interpretation of the regular courts results to be coherent with the substance of the offence and reasonably foreseeable.

As regards the allegation for violation of the right to privacy, the Court assessed that on the basis of  the reasoning of the regular courts, but also of the content of the Referral as a whole, it results that: (i) the measures of covert surveillance were based upon law, which, has been and is accessible to the Applicant, in order for him to adjust his conduct according to the circumstances of the case; and, (ii) the measures in question are proportionate and pursue the legitimate aim of preventing and adjudicating terrorism-related offences as a serious threat to public safety; it results that (iii), those measures are necessary in a democratic society.

As to the Applicant’s allegations for a reasoned decision, effective legal remedies and violation of the principle in dubio pro reo, the Court assessed that the said allegations  need not to be examined because they do not raise any new issues that have not been considered before. within the scope of Articles 31. (4) [Right to Fair and Impartial Trial], 33 [ The Principle of Legality and Proportionality in Criminal Cases] and 36 [Right to Privacy] of the Constitution in conjunction with Articles 6 (1 ) (3) and (d) [Right to a fair trial], 7 [No punishment without law] and 8 [Right to respect for private and family life] of the ECHR.

The Constitutional Court, pursuant to Article 113. (7) of the Constitution, Articles 20 and 47. 2 of the Law and Rules 39 (1) (b) and (2), 58 (4) and 59 (2) of the Rules of Procedure declared the Referral inadmissible as manifestly ill-founded.