Constitutional Court

KI140/18, Applicant: Naim Osmani, constitutional review of Judgment Pml. No. 36/2018 of the Supreme Court of Kosovo of 30 April 2018 

KI140/18, Resolution on Inadmissibility of 18 December 2019, published on 16 January 2020

Keywords: Individual referral, right to defense counsel, non-reasoning of the court decision, manifestly ill-founded referral

1. The Basic Court in Gjakova, General Department found the Applicant guilty of having committed the criminal offense of “light bodily injury” in co-perpetration and sentenced him to one hundred and eighty (180) days of imprisonment. Against the abovementioned Judgment of the Basic Court the Applicant and L.P. filed a “joint appeal” with the Court of Appeals due to the decision on the length of punishment in the Court of Appeals. In their appeal, the Applicant and L.P. proposed the replacement of the imprisonment sentence with a fine. The Court of Appeals rejected the appeal filed by the Applicant and L. P. as ungrounded. As to the conversion of the imprisonment sentence into a fine, the Court of Appeals held that such a request should have been submitted to the first instance court, which pronouncement the punishment. Against this decision of the Court of Appeals, the Applicant filed a request for protection of legality with the Supreme Court, alleging, inter alia, that in the first instance court his right to a defense counsel was violated, that the joint appeal filed by him and the L.P. is not permitted under the Criminal Procedure Code and that the Court of Appeals violated legal provisions when it has not dealt with his request for the conversion of imprisonment to a fine. The Supreme Court rejected the Applicant’s request for protection of legality as ungrounded.

2. The Applicant alleged before the Court that by the challenged decision, the Supreme Court violated the Applicant’s rights guaranteed by Article 21 [General Principles], Article 22 [Direct Applicability of International Agreements and Instruments], 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), as well as Articles 53 [Interpretation of Human Rights Provisions] and 54 [Judicial Protection of Rights] of the Constitution.

3. The Applicant in relation to the challenged Judgment essentially alleged that (i) the right to a defense counsel was violated to the Applicant in the course of the criminal proceedings before the Basic Court, which allegation he relates with the equality of arms in criminal proceedings and that (ii) the Supreme Court did not reason the Applicant’s specific allegations regarding the criminal proceedings before the Basic Court and the Court of Appeals specified in his request for protection of legality. Therefore, the Applicant’s allegations concerning the right to defense and the right to a reasoned judicial decision were elaborated by the Court in the light of the procedural safeguards guaranteed by Articles 30 and 31 of the Constitution in conjunction with Article 6 of the ECHR.

4. With regard to the Applicant’s allegation that during the criminal proceedings before the Basic Court his right to a defense counsel was violated, the Court, based on the Applicant’s allegations and the facts presented by him, and based on the general principles established in the ECtHR case law, which held that the right to have a defense counsel is not absolute and that this right must be interpreted in accordance with the relevant legislation in force, and the specific circumstances of the case, holds that the interpretation and reasoning of the Supreme Court is based on law and based on the facts presented before this court. Therefore, the Court found that the Applicant’s allegations of infringement of his right to a defense counsel, which is an integral element of the right to fair and impartial trial guaranteed by Articles 30 and 31 of the Constitution in conjunction with Article 6 of the ECHR, are manifestly ill-founded.

5. Concerning the allegation of non-reasoning of the court decision, namely the challenged decision of the Supreme Court, the Court considered that the conclusions of the Supreme Court have been reached after a thorough examination of all the arguments put forward by the Applicant. Consequently, the Court considers that the reasoning given by the Supreme Court meets the standards for a reasoned decision.

6. Whereas, regarding the Applicant’s allegation of a violation of Articles 21, 22, 53 and 54 of the Constitution, the Court notes that the Applicant has only mentioned these Articles of the Constitution without giving any explanation as to how and in what circumstances the constitutional provisions were violated.

7. Finally, the Court found that the Applicant’s Referral does not meet the admissibility criteria established in the Rules of Procedure, because the Referral is manifestly ill-founded on constitutional basis, taking into account that the facts presented do not in any way justify the allegation of violation of a constitutional right and the Applicant does not sufficiently substantiate his claim of a constitutional violation.