Constitutional Court

KI122/19, Applicant: F.M., Constitutional review of Judgment PML. No. 49/2019 of the Supreme Court of Kosovo, of 7 March 2019 in conjunction with Judgment PA1. No. 358/2018 of the Court of Appeals of Kosovo of 19 November 2018, and Judgment P. No. 927/14 of the Basic Court in Prishtina, of 15 January 2018

KI122/19, Resolution on inadmissibility, adopted on 9 July 2020, published on  31 August 2020

Keywords: individual referral, manifestly ill-founded referral, equality of arms, administration of evidence, right to remain silent, non-disclosure of identity

On 15 January 2018, the Basic Court in Prishtina found the Applicant guilty, who in order to terminate the pregnancy of the injured party X, as a result of the physical violence exercised against her, has committed the criminal offense of attempted “Unlawful termination of pregnancy” and was  sentenced to imprisonment for a term of one (1) year. Against the Judgment of the Basic Court, the Applicant filed an appeal with the Court of Appeals, which was rejected as ungrounded by this Court. Further, the Applicant also filed a request for protection of legality with the Supreme Court, inter alia alleging that the challenged judgments were based on the testimony of the injured party, which evidence was contrary to the material evidence and that the Basic Court did not take into account the fact that in the main hearing he defended himself by remaining silent. The Supreme Court rejected the request for protection of legality as ungrounded, finding that the Basic Court took into account the other evidence, and that it had respected the right of the Applicant to remain silent during the court hearings of this Court.

The Applicant challenges these findings before the Court, alleging that his fundamental rights and freedoms guaranteed by Article 24 [Equality Before the Law] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution) have been violated in conjunction with Article 14 (Prohibition of discrimination) of the European Convention on Human Rights (hereinafter: ECHR) and Article 7 of the Universal Declaration of Human Rights (hereinafter: UDHR), Article 29 [Right to Liberty and Security] of the Constitution in conjunction with Article 5 (Right to liberty and security) of the ECHR, Article 31 [Right to a Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the ECHR, as well as Articles 53 [Interpretation of on Human Rights Provisions] and 54 [Judicial Protection of Rights] of the Constitution. With regard to the Applicant’s allegation of violation of his right to fair and impartial trial, the Court notes that the Applicant’s allegations refer to: (i) the administration of evidence by the court and the principle of equality of arms; (ii) protection by remaining silent; and (iii) the reasoning of the court decision by the Supreme Court.

The Court, after having assessed the Applicant’s allegations, applying the standards of the case law of the European Court of Human Rights, found that the Referral is inadmissible, because (i) allegations of violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR; as well as Article 24 of the Constitution in conjunction with Article 14 of the ECHR and Article 7 of the UDHR are inadmissible because they are manifestly ill-founded on constitutional basis, as established in Articles 47 and 48 of the Law and paragraph (2) of Rule 39 of the Rules of Procedure; and (ii) allegations of violation of Article 29 of the Constitution in conjunction with Article 5 of the ECHR, as well as Article 54 of the Constitution are inadmissible in accordance with Article 48 of the Law in conjunction with item (d) of paragraph (1) of Rule 39 of the Rules of Procedure.

Finally, the Court, in accordance with Rule 32 of the Rules of Procedure and based on the case file, as well as taking into account the sensitivity of the case, assessed that in order to protect the identity of the victim and the minor child, the non-disclosure of the Applicant’s identity is considered to be necessary.