Constitutional Court

KI 24/17, Constitutional review of Judgment Rev. No. 308/2015 of the Supreme Court of Kosovo, of 12 January 2017

 KI 24/17, Applicant Bedri Salihu

Judgment of 27 May 2019, published on 24 July 2019

Keywords: Individual referral, unreasoned court decision, (im)partial court

 The Applicant alleges that the challenged Judgment of the Supreme Court, namely Judgment [Rev. No. 308/2015] of 12 January 2017 was rendered in violation of his fundamental rights and freedoms 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 on Human Rights, because according to the Applicant, the challenged Judgment (i) did not implement the Judgment of the Court in Case KI18/16 and consequently, did not meet the standards of a reasoned judicial decision; and (ii) it was rendered by a partial court, because the composition of the decision-making panel of the Supreme Court was identical with the panel that had decided the first time in his case by Judgment [Rev. No. 308/2015] of 12 November 2015, and which the Court declared invalid in case KI18/16.

As to the first allegation, the Court found that Judgment [Rev. No. 308/2015] of 12 January 2017 of the Supreme Court did not remedy the flaws identified by the Judgment in the case KI18/16 and therefore, continues not to satisfy the standards of a reasoned judicial decision guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, declaring the latter invalid and remanding for the second time the Applicant’s case for retrial to the Supreme Court.

As regards the second allegation of the Applicant, namely the allegations related to an impartial court, the Court elaborated (i) the general principles of the European Court of Human Rights regarding the criteria for assessing the impartiality of a court; (ii) the concept of subjective and objective impartiality of the court; (iii) the practice of the European Court of Human Rights in terms of assessing the impartiality of the court, namely the concept of “legitimate doubts” and the fact that they must be “objectively justified” in order to ascertain the impartiality of a court; (iv) the relevant case law regarding the assignment of trial panels/panels in the same composition in the same court cases; and finally concluded that (v) although Judgment [Rev. No. 308/2015] of 12 January 2017 of the Supreme Court was rendered by the identical composition of the Panel, which also decided in the previous Judgment, namely, the Judgment [Rev. 308/2015] of 12 November 2015, thus resulting in “legitimate doubts” of the impartiality of the court, in the Court’s assessment these doubts are not “objectively justified” in the circumstances of the present case.

In conclusion, in accordance with Article 113.7 of the Constitution, Article 20 of the Law, and Rules 56 (1) and 74 (1) of the Rules of Procedure, unanimously, in the session of 27 May 2019, the Court declared the Referral admissible, held that there has been a violation of Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights and declared invalid the Judgment [Rev. No. 308/2015] of 12 January 2017 of the Supreme Court, for failure to reason the court decision.