Constitutional Court

KI161/21, Applicant: Suzana Zogëjani Sekiraqa, Constitutional review of Judgment Pml. no. 310/2020 of the Supreme Court of Kosovo of 28 April 2021;

Key words: individual referral, right to fair and impartial trial, equality of arms, request for psychiatric examination, examination of witnesses, protection of the best interests of the child, admissible referral, Convention on the Rights of the Child, Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), violation of the right to fair and impartial trial

The Constitutional Court of the Republic of Kosovo published today case KI161/21, submitted by Suzana Zogëjani Sekiraqa. Based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo, the Applicant challenged before the Court the Judgment [Pml. no. 310/2020] of 28 April 2021 of the Supreme Court of the Republic of Kosovo in conjunction with Judgment [PAKR. no. 133/2020] of 3 July 2020 of the Court of Appeals and Judgment [PKR. no. 37/2019] of 24 January 2020 of the Basic Court of Prishtina.

The Court decided by a majority that (i) the Referral is admissible for review on merits and (ii) held that the Judgment [Pml. no. 310/2020] of 28 April 2021 of the Supreme Court in conjunction with the Judgment [PAKR. no. 133/2020] of 3 July 2020 of the Court of Appeals and the Judgment [PKR. no. 37/2019] of 24 January 2020 of the Basic Court of Prishtina are not in compliance with paragraph 1 and 4 of Article 31 [Right to Fair and Impartial Trial] of the Constitution and item d) of paragraph 3 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

The Judgment clarifies that the circumstances of the present case, which are elaborated in detail in the published Judgment, are related to the sentence of the Applicant to twenty-five (25) years of imprisonment for the murder of her husband, namely the deceased A.S., in 2018. More precisely, by the Judgment [PKR. no. 37/2019] of 24 January 2020 of the Basic Court of Prishtina, the Applicant was found guilty of committing the criminal offense of “Aggravated Murder” as it is established in items 1.3 and 1.4 of paragraph 1 of Article 179 (Aggravated Murder) of the Criminal Code of the Republic of Kosovo.

The Judgment further clarifies that the circumstances that preceded the conduct of the criminal proceedings against the Applicant, , namely the fact that the Applicant from 2007 to 2018, initially to the competent institutions of the Republic of Kosovo and after that to the authorities of the Republic of France reported that she was a victim of .domestic violence; (ii) from 2010 to 2018, at various periods of time, she and her children were offered shelter by the French authorities; (iii)In 2018 the Court of Lyon in the Republic of France found guilty and sentenced for domestic violence now the deceased A.S. and he was later released on bail; whereas (iv) on 21 September 2018, A.S. was deprived of life by the Applicant, who following this along with her children, returned to the Republic of Kosovo, where she reported to the Embassy of the Republic of France in the Republic of Kosovo and on 4 October 2018the latter was arrested by the competent authorities of the Republic of Kosovo. This criminal proceedings in the circumstances of the present case ended with the issuance of the challenged Judgment [Pml. no. 310/2020] of 28 April 2021 of the Supreme Court.

The Applicant in the proceedings before the regular courts did not challenge the act which she was charged with, however, in the course of the criminal proceedings against her, she has consistently and among others, requested (i) relevant psychiatric examination; (ii) confrontation with the witnesses whose testimonies were obtained by the French authorities, but during the conduct of the criminal proceedings were only read during the main trial and the Applicant did not have the opportunity to confront them at any stage of the criminal procedure; (iii) taking into account the testimonies, including those of the French authorities regarding the fact that she was a victim of domestic violence; and challenged (iv) the questioning of her son, namely the minor, X.X, as a witness during the proceedings in the Basic Court, without professional support, namely without the presence of a psychologist. The requests and/or claims of the Applicant were rejected by the regular courts. As a result, the Applicant raises the same claims before the Court, challenging the relevant Judgments of the regular courts, with the allegations that the latter were rendered in violation of the procedural guarantees established 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 on Human Rights, with emphasis on the violation of the principle of equality of arms.

In the context of the Applicant’s claims, the Court (i) first elaborated on the general principles regarding the principle of equality of arms based on its case law and that of the European Court of Human Rights, including the relevant principles stemming from the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) and the Convention on the Rights of the Child, directly applicable in the legal order of the Republic of Kosovo and with precedence over the applicable laws, and following this (ii) applied the latter to the specific circumstances of the present case. According to the detailed clarifications in the published Judgment, the Court, among other things, initially emphasized that based on constitutional guarantees, anyone accused of a criminal offense has the right to ask questions of witnesses and to request the mandatory appearance of witnesses, experts and other persons, who can clarify the facts, the guarantees which are further specified in the applicable laws of the Republic of Kosovo. In the circumstances of the present case and in the context of the constitutional principle of equality of arms, the Court, among other things, emphasized that in the court proceedings before the regular courts in this criminal process, the prosecution and the defense were not treated equally, among other things , taking into account that (i) the Applicant and/or her defense, at any stage of the criminal procedure, did not have the opportunity of confronting the witnesses or the testimonies of the latter, whose statements were read in the judicial process but which, based on the reasoning of the regular courts, contrary to the constitutional guarantees and the case law of the European Court of Human Rights, no procedural action was taken so that the Applicant could have been provided with such an opportunity; (ii) the requests of the Applicant and/or her defense to present the evidence, including those of the French authorities, based on which it would be proven that she was a victim of domestic violence, were rejected by all court instances; and (iii) in the specific circumstances of the present case, the continuous refusal of the regular courts to perform the psychiatric examination of the Applicant is contrary to the guarantees defined in the context of the specific circumstances of the case through the case law of the European Court of Human Rights, among others, in the Judgment Gaggl v. Austria, moreover, taking into account the fact that the reasoning of the Basic Court itself uses prejudicial language against the Applicant.

Additionally, and importantly, the Judgment elaborates on the applicable principles and standards, including through international instruments, in cases where minors testify in court proceedings. Referring to Article 50 [Rights of Children] of the Constitution, Article 3 of the Convention on the Rights of the Child, obligations stemming from Article 18 (General obligations) of the Istanbul Convention and the case law of the European Court on Human Rights, the court emphasized the fact that all public authorities, including courts, have the obligation to protect the best interests of the child in criminal proceedings, and that in the circumstances of the present case, the courts failed to fulfill this obligation, taking into account, among other things, the fact that the minor X.X. was the only eyewitness in the circumstances of the present case, in a context in which he testified in a criminal case related to the murder of his father and for which his mother was accused, and that he was interrogated without professional support, namely without the presence of a psychologist and/or adequate professional. The Court emphasized that in terms of the positive obligations defined by the Constitution and international instruments, including the relevant case law of the European Court of Human Rights, the best interest of the child should be the first and most important consideration for all public authorities, including the justice system.

Based on the above, the Court concluded that the relevant judgments of the regular courts were rendered in violation of the principle of equality of arms and therefore, contrary to the procedural guarantees embodied in paragraphs 1 and 4 of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with item d) of paragraph 3 of Article 6 (Right to a fair trial) of the European Convention on Human rights. As a result, the Court declared the latter invalid and remanded the relevant criminal case to the Basic Court in Prishtina for retrial.

In the end, the Court emphasized the fact that the effects of this Judgment are only related to the findings in terms of the procedural guarantees embodied in the aforementioned articles of the Constitution and the European Convention on Human Rights, regarding the violation of the principle of equality of arms in context of the conducted criminal proceedings and that the latter does not in any way prejudice the guilt or the course of the criminal proceedings in the retrial, including but not limited to the way of handling the indictment brought against the Applicant related to the criminal offense of aggravated murder for which she is accused and the relevant decision-making regarding the extension of detention, the issues which are within the full competence of the Basic Court in Prishtina, as stipulated by the relevant provisions of the Criminal Code and the Criminal Procedure Code of the Republic of Kosovo. This Judgment will also be supplemented with a dissenting opinion.