Constitutional Court

KI239/19, Applicant: Hakif Veliu, Constitutional review of Judgment Pml. no. 253/2019 of the Supreme Court of Kosovo, of 30 September 2019

KI239/19, resolution on inadmissibility, decided on 10 February 2021

Keywords: individual referral, request for interim measures, inadmissible referral, principle of adversarial proceedings, principle of equality of arms, lack of reasoned court decision, presumption of innocence.

1. The circumstances of the present case relate to the fact that in 2015 the Special Prosecution of the Republic of Kosovo(hereinafter: the SPRK) had accused the Applicant that by acting in co-perpetration and with the intent to obtain unlawful material benefit for the Book Translation Company (ISN Company), with which the University had concluded a contract, had “falsified the original contract”, and subsequently the contract was modified, thereby enabling the company to obtain a greater financial benefit for the same services.

On 18 December 2017, the Basic Court in Prishtina, Serious Crimes Department (hereinafter: the Basic Court) by Judgment PKR.no. 432/15 pronounced the Applicant guilty of having committed in co-perpetration the criminal offence of “fraud in office” and sentenced him to imprisonment in length of six (6) months, by replacing the sentence of imprisonment with a fine in the amount of 10,000 euros. Subsequently, the Basic Court also obliged the defendant, including the Applicant, to jointly compensate the damage to the University of Prishtina in the amount of 70,131.27 euros. The Applicant filed an appeal with the Court of Appeals against the judgment of the Basic Court, due to (i) substantial violations of the provisions of criminal procedure, erroneous and incomplete determination of the factual situation and violation of the criminal law; (ii) decision on the punishment; and (iii) in relation to the decision on the legal property claim concerning the University of Prishtina. Whereas the SPRK, through its appeal had requested the modification of the decision on the punishment.

The Court of Appeals, by Judgment [PAKR no.27/2018] approved the appeal filed by the Applicant in the part relating to the legal property claim, by instructing the University of Prishtina, in the capacity of the injured party to pursue its legal property claim in a civil dispute, while the rest of the appeal was rejected as ungrounded. The Court of Appeals also approved the appeal of the SPRK regarding the decision on the punishment, thus sentencing the Applicant to imprisonment in the length of one (1) year. As a result of the request for protection of legality filed by the Applicant with the Supreme Court, whereby, among other things, he had complained about the non-holding of the session of the Appellate Panel, the Supreme Court through Judgment Pml.no.238/2018, of 5 October 2018 approved the Applicant’s request for protection of legality as grounded, and 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 PAKR.no.528/2018, of 16 April 2019 rejected as ungrounded the Applicant’s appeal by confirming the Judgment of the Basic Court, of 18 December 2017. In his request for protection of legality, the Applicant alleged: (i) substantial violation of the criminal procedure law under Article 384, paragraph 1, sub-paragraph 1.12 of the CPCK; and (ii) violation of the criminal law.  On 30 September 2019, the Supreme Court through Judgment [Pml. No.253/2019] rejected the Applicant’s request for protection of legality as ungrounded.

2. In relation to the above findings of the regular courts, the Applicant alleged that his 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) have been violated. The Applicant, in essence alleged that the challenged Judgment of the Supreme Court in his case, has violated: I. The principle of adversarial proceedings and the principle of equality of arms in proceedings, (i) as a result of the failure to notify him about the submission of the State Prosecutor and (ii) the principle of equality of arms due to non-admission of evidence by the regular courts; II. The principle of legal certainty related to the right to a reasoned court decision, as well as III. The principle of presumption of innocence and the lack of “specific protection”.

3. The Court, having assessed the allegations of the Applicant, by applying the standards of the case law of the Court and of the European Court of Human Rights, in respect to the principle of adversarial and equality of arms, the lack of a reasoned court decision and the principle of presumption of innocence and lack of “specific protection”, principles and guarantees that are guaranteed by Article 31 of the Constitution and Article 6 of the ECHR, found that the Applicant’s Referral is inadmissible because: I. The allegation in respect of (i) the violation of the principle of adversarial proceedings and that of equality of arms in the procedure as a result of the failure to notify the Applicant about the State Prosecutor’s submission is manifestly ill founded on constitutional basis, as defined through Articles 47 and 48 of the Law and paragraph (2) of Rule 39 of the Rules of Procedure; whilst the allegation for (ii) a violation of the principle of equality of arms due to non-admission of evidence by the regular courts is inadmissible as a result of non-exhaustion of legal remedies in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law, and item (b) of paragraph (1) of Rule 39 of the Rules of Procedure; The allegation for violation of the principle of legal certainty related to the right to a reasoned court decision is manifestly ill-founded on constitutional basis, as defined through Articles 47 and 48 of the Law and paragraph (2) of Rule 39 of the Rules of Procedure; and III. The allegation for violation of the principle of presumption of innocence and “specific protection” is inadmissible as a result of non-exhaustion of legal remedies in accordance with paragraphs 1 and 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law, and item (b) of paragraph (1) of Rule 39 of the Rules of Procedure.