Constitutional Court

KI113/21, Applicant: Bukurije Haxhimurati, constitutional review of Judgment Pml. No. 29/2021 of the Supreme Court of Kosovo of 13 April 2021

KI113/21, Judgment of 20 December 2021, published on 13 January 2022

Keywords: individual referral, “retroactive interception of SMS text messages”, the right to privacy, right to a fair trial

The circumstances of the present case are related to the sentence of the Applicant for the criminal offense of “exercising influence”, since the latter, according to the decisions of the regular courts, had received a certain amount of money to influence the decision-making of official persons, in order to mitigate or release from the sentence a person who was convicted for a criminal offense. With regard to finding the Applicant guilty, the regular courts administered a number of pieces of evidence, including: (i) reading the testimony of witness “C”; (ii) transcripts of meetings held between the Applicant and witness “C”; (iii) testimony of other witnesses and other material evidence; (iv) interception reports; and (v) a number of SMS text messages, which were retroactively taken by the order of the Basic Court in Prishtina.

During the proceedings before the regular courts, the Applicant challenged, inter alia, the evidence examined against her, including (i) the order of the Basic Court authorizing the receipt of SMSs retroactively; and (ii) reading the testimony of witness “C” given during the investigation phase, as the latter was declared a protected witness and therefore did not testify at the main hearing, but his statement was read. The Court of Appeals and the Supreme Court, respectively, rejected these allegations, upholding the Applicant’s conviction.

The Applicant alleged before the Court that her right to privacy guaranteed by Article 36 [Right to Privacy] of the Constitution in conjunction with Article 8 (Right to respect for private and family life) of the European Convention on Human Rights had been violated, as well as the right to fair and impartial trial guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention of Human Rights because, inter alia: (i) The judgment of the Basic Court in relation to her conviction was based on evidence which was unlawful, namely, the SMSs retroactively taken, and (ii) during the main hearing she was not allowed to cross-examine the witness “C”.

In assessing the Applicant’s allegations, the Court, based on the cas law of the European Court of Human Rights, initially stated that the interception of telephones and SMS was considered an “interference” with the right to “private life” and “correspondence”. However, according to the European Court of Human Rights, such an “interference” is justified if it is (i) “provided by law”; (ii) pursues a “legitimate aim”; and (iii) if it is “proportionate”. In applying these principles in the circumstances of the present case, the Court found that the issuance of SMS retroactively, namely the order of a court that retroactively authorizes covert and technical measures of surveillance and investigation, was contrary to the provisions of the Criminal Procedure Code, since such an order is valid only from the “date of issuance” of the relevant court decision and not retroactively. Consequently, the Court found that the “relevant interference” with the Applicant’s private life was not “provided by law”, namely it was contrary to the applicable law, and consequently, it was no longer necessary to assess whether in the circumstances of the present case, there may have been a “legitimate aim” or “proportionality”.  Therefore, based on the case law of the European Court of Human Rights, the Court found that, in the circumstances of the present case, the decisions of the regular courts had resulted in a violation of the Applicant’s right to privacy, contrary to the guarantees of the Article 36 of the Constitution in conjunction with Article 8 of the European Convention on Human Rights.

However, in dealing with the Applicant’s allegations of violation of the right to a fair and impartial trial, the Court emphasized that the finding of a violation of the right to privacy does not necessarily result in a violation of the right to a fair and impartial trial. Based on the case law of the European Court of Human Rights, in order to reach such a finding, the Court must assess whether the relevant evidence was “single” and/or “decisive” in determining guilt, namely to sentence of the Applicant by the regular courts. In the circumstances of the present case, the Court found that the interceptions/retroactive reading based on an unlawful decision of the Basic Court, were not “decisive” for the conviction of the Applicant. This is because the judgments of the regular courts were based, inter alia, also in the transcripts of the meetings held between the Applicant and witness “C”; the testimonies of other witnesses; interceptions based on the orders of the respective court which were not challenged by the Applicant and other material evidence. Furthermore, with regard to the testimony of witness “C”, the Court also noted that, based on the case file (i) the Applicant and her defense counsels were invited during the examination of witness “C” at one stage of the proceedings, but refused to attend; and that (ii) the testimony of witness “C”, read at the main hearing, was not the “single” and/or “decisive” evidence for finding the Applicant guilty.

Therefore and based on the explanations given in the published Judgment, the Court found that the challenged Judgment of the Supreme Court did not violate the procedural guarantees set out in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, therefore the latter, as to the sentence of the Applicant, remains in force. Whereas, regarding the finding of a violation of the Applicant’s right to privacy in violation of the guarantees established in Article 36 of the Constitution in conjunction with Article 8 of the European Convention on Human Rights, given that the Constitutional Court does not have the competence to award compensation based on its case law, the latter clarified that the Applicant can use the legal remedies available under the legislation in force, for the further exercise of her rights, including the right to seek compensation for material damage as a result of violation of the right to privacy guaranteed by Article 36 of the Constitution and Article 8 of the ECHR.