Constitutional Court

KI230/19, Applicant: Albert Rakipi, Constitutional review of Judgment Pml. No. 253/2019 of the Supreme Court of Kosovo, of 30 September 2019

KI230/19, Judgment, rendered on 9 December 2020

Keywords: individual referral, request for holding a public hearing, admissible referral, adversarial principle, principle of equality of arms, lack of a reasoned court decision, official person, use of analogy in criminal law, violation of the right to fair and impartial trial

1. The circumstances of the present case are related to the fact that the Applicant, in 2015 by the Special Prosecution of the Republic of Kosovo (hereinafter: SPRK) was accused that in co-perpetration, as a director of a company [ISN company] in the Republic of Albania won the contract with the University of Prishtina for the translation of some books, and in order to unlawfully benefit for the company, had “falsified the original contract”, where the contract was later amended, which enabled the company a greater benefit for the same services. On 18 December 2017, the Basic Court in Prishtina, Serious Crimes Department by Judgment PKR. No. 432/15, after finding that the Applicant had the status of an official person, found him guilty of committing the criminal offense “fraud in office” in co-perpetration under Article 341, paragraph 3 in conjunction with Article 23 of the Provisional Criminal Code of Kosovo, and consequently sentenced him to imprisonment of six (6) months, replacing the imprisonment sentence with a fine of 10,000 (ten thousand) euro. Against the Judgment of the Basic Court, the Applicant, two other convicts, as well as the SPRK filed an appeal with the Court of Appeals. The Applicant specifically claimed that (i) the Basic Court had unlawfully rejected to administer the correspondence of an e-mail which he proposed as material evidence (ii) that he did not have the status of an official prson; and (iii) violation of the provisions of criminal procedure on the grounds that the legal property claim was not filed by the competent person. On the other hand, the SPRK, by its appeal requested the modification of the decision on sentence. The Court of Appeals, inter alia, by Judgment [PAKR No. 27/2018] of 2 May 2018 partially approved the Applicant’s appeal only regarding the legal property claim, instructing the University of Prishtina in a civil dispute for the realization of this claim, while approving the appeal of the SPRK and modifying the decision on the sentence, and consequently the Applicant was sentenced to imprisonment of one (1) year. As a result of the request for protection of legality submitted by the Applicant to the Supreme Court, by which, among other things, he complained about the non-holding of the session of the Appellate Panel, and according to him he was denied the presentation of new evidence, the Supreme Court by Judgment Pml. No. 238/2018, of 5 October 2018 approved the request for protection of legality submitted by the Applicant as grounded, annulled the Judgment of the Court of Appeals and remanded the case for reconsideration to the same court. In the retrial procedure, the Court of Appeals by Judgment No. 528/2018 of 16 April 2019, rejected the Applicant’s appeal as ungrounded and upheld the Judgment of the Basic Court, of 18 December 2017. The Applicant in his request for protection of legality (i) alleged violation of the equality of arms and the principle of adversarial proceedings as a result of the non-administration of electronic correspondence as material evidence by the Basic Court; (ii) erroneous interpretation of the law and violation of the principle of prohibition of analogy in criminal law, as a result of his qualification as an official person. The Supreme Court by Judgment Pml. 253/2019, of 30 September 2019 rejected the Applicant’s request for protection of legality as ungrounded and upheld the Judgments of the Basic Court, of 18 December 2017 and that of the Court of Appeals, of 16 April 2019. The Supreme Court upheld the position of the lower instance courts regarding their non-approval of the administration of electronic correspondence as material evidence and their interpretation regarding the qualification of the Applicant as an official person, who was consequently convicted of committing the criminal offense of fraud in office.

2. The Applicant in relation to the abovementioned findings of the regular courts, specifically to that of the Supreme Court, alleged violation of the Applicant’s rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution), in conjunction with Article 6 (Right to a fair trial) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the ECHR), and Article 10 of the Universal Declaration of Human Rights (hereinafter: the UDHR). The Applicant, in essence, alleged a violation of the principle of adversarial proceedings and equality of arms, as a result of non-administration of electronic correspondence as material evidence and (ii) erroneous interpretation of the law by the regular courts, which according to him, by using the analogy, erroneously interpreted that he had the status of official person. Subsequently, the Applicant also requested the holding of a public hearing in the Court.

3. The Court, during the assessment of the admissibility of the Referral, found that the Applicant (i) is an authorized party, because he submitted the Referral in the capacity of an individual in order to protect his rights; (ii) has specified the fundamental rights and freedoms guaranteed by the Constitution which he alleges to have been violated; (iii) has submitted his referral within the time limit; (iv) that the Referral is not manifestly ill-founded on constitutional basis and has, therefore, concluded that the Applicant’s Referral is admissible.

4. The Court, further, regarding the Applicant’s allegation of violation of his right to fair and impartial trial, as a result of the erroneous interpretation of the law by the regular courts during his qualification as an official person, decided to consider this claim within the framework of his right to a reasoned court decision, which is also an integral part of the right to fair and impartial trial, guaranteed by Article 31 of the Constitution, in conjunction with Article 6 of the ECHR.

5. The Court, after assessing the allegations of the Applicant, applying the standards of the case law of the European Court of Human Rights, the Court regarding the adversarial principle, principle of equality of arms and the lack of a reasoned court decision, the principles and guarantees, which are guaranteed by Article 31 of the Constitution and Article 6 of the ECHR, found as follows: (i) With regard to the Applicant’s allegation of a violation of the principle of “equality of arms” and the principle of “adversarial proceedings” as a result of the rejection of evidence proposed by the regular courts, the Court found that the Applicant’s allegations that his right to fair and impartial trial, guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR are ungrounded; and (ii) as to the lack of a reasoned court decision, the Court found that with the issuance of Judgment Pml. No. 253/2019, of 30 September 2019, the Supreme Court failed to substantiate the substantive allegations of the Applicant and did not reason its decision regarding his qualification as an official person.