Constitutional Court

KI63/19 and KI66/19, Applicants: Vahide Badivuku, Idriz Kelmendi, Constitutional review of Judgment Pml. No. 199/2018 of the Supreme Court of the Republic of Kosovo, of 5 December 2018

KI63/19 and KI66/19, Resolution on inadmissibility, adopted on 12 April 2021, published on 26 April 2021

Keywords: individual referral, criminal procedure, manifestly ill-founded referral, inadmissible referral

Referral KI63/19 was submitted by Vahide Badivuku residing in the Municipality of Vushtrri, while Referral KI66/19 was submitted by Idriz Kelmendi, from Mitrovica who was represented by lawyer Besnik Berisha.

The Applicants alleged that the Judgment [PML. No. 199/2018] of 5 December 2018 of the Supreme Court was rendered in violation of their fundamental rights and freedoms guaranteed by Article 3 and Article 24 [Equality Before the Law], Articles 30 [Rights of the Accused], 31 [Right to Fair and Impartial Trial], 32 [Right to Legal Remedies], 33 [The Principle of Legality and Proportionality in Criminal Cases] 36 [Right to Privacy], 54 [Judicial Protection of Rights], 102 [General Principles of the Judicial System] and 109 [State Prosecutor] of the Constitution and Article 6 (Right to a fair trial), Article 7 (No punishment without law), and Article 8 (Right to respect for private and family life) of the ECHR.

The Court considered all the allegations of the Applicants, and reasoned each of their allegations.

With regard to the Applicant’s allegations KI63/19, the Court, after having considered and assessed each of her allegations, decided as follows:

The Court noted that the Applicant has had sufficient opportunity to present before the regular courts all the allegations of violation of her rights. In addition, the Court considered that her arguments have been properly heard and reviewed by the regular courts. The Court considers that the decisions of the regular courts are reasoned and that the proceedings, viewed in their entirety, have not been in any way unfair or arbitrary (See the ECtHR case: Shub v Lithuania, application no. 17064/06, Judgment of 30 June 2009). In line with its consolidated case law, the Court reiterates that is not a function of the Constitutional Court to deal with the alleged errors of the application of relevant laws allegedly committed by the regular courts, if such an application does not violate the rights and freedoms protected by the Constitution and the ECHR. It may not itself assess the law which has led a regular court to adopt one decision rather than another. If it were otherwise, the Court would be acting as a court of “fourth instance”, which would be to disregard the limits imposed on its jurisdiction. In fact, it is the role of regular courts to interpret and apply the pertinent rules of both procedural and substantive law (see ECtHR case, Garcia Ruiz v. Spain, application no. 30544/96, Judgment of 21 January 1999, paragraph 28).

Therefore, the Court notes that there has been no violation of Article 31 of the Constitution and Article 6 of the ECHR with regard to the issue of admissibility and administration of evidence within a fair trial. Consequently, the Referral is manifestly ill-founded on constitutional basis and must be declared inadmissible, in accordance with Rule 39 paragraph (2) of the Rules of Procedure.

As to the Applicant’s allegation of violation of the principle of presumption of innocence and the principle in dubio pro reo, the Court will not further address due to lack of clarification and relevant reasoning, it also states that it has already found above that there has been no violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR in connection with the process of admissibility and administration of evidence.

With regard to the allegation of violation of the principle of equality of arms, the Court found that in light of the elaborations and reasoning of the Supreme Court, the Court finds that in the Applicant’s case the regular courts rendered their decisions in accordance with the standards required for fair and impartial trial and their decision-making was not based only on one evidence but on a number of pieces of evidence, which are listed in its judgments.

With regard to the allegation of a violation of Article 36 of the Constitution in conjunction with Article 8 of the ECHR, the Court considered that the Applicant did not substantiate or sufficiently reason her allegation of a violation of her rights on constitutional basis for violation of fundamental human rights and freedoms guaranteed by the Constitution, specifically, of violation of Articles 31 and 36 of the Constitution, because the facts presented by her, do not in any way indicate that the regular courts have denied her the rights guaranteed by the Constitution.

Regarding the allegations of the Applicant KI66/19, the Court, after having considered and assessed each of his allegations, decided as follows:

With regard to the allegation of violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, in this respect, the Court considers that, although the Supreme Court may not have responded to every point raised by the Applicant in his Referral (see Van de Hurk v. the Netherlands, cited above, paragraph 61), it has addressed the Applicant’s substantive arguments concerning the application of substantive law (see case of the ECtHR, Buzescu v. Ukraine, application no. 63566/00, Judgment 18 July 2006, paragraph 25), thus, the obligation to provide a reasoned court decision under the requirements of Article 31 of the Constitution in conjunction with Article 6 of the ECHR has been fulfilled.

In this regard, the Court recalls that in terms of the right to a reasoned court decision guaranteed by Article 31 of the Constitution and Article 6 of the ECHR, it is the obligation of the courts to address the Applicants’ substantive arguments and the reasons given to be based on the applicable law. The Court considers that with regard to the concrete allegation, the regular courts and the Supreme Court, which Judgment is challenged before the Court, have fulfilled this obligation.

Regarding the allegation of violation of the right to fair and impartial trial as a consequence of violation of the principle of non-aggravation of the position of the defendant, reformatio in peius, during the examination of the case, in the present case, the Court notes that the Special Prosecutor has requested a harsher sentence for the Applicant in two court instances. The Court also notes that the Court of Appeals and the Supreme Court have assessed that the formal requirement for non-violation of the principle “reformatio in peius” under Article 395 of the CPC has been met by filing appeals with the Basic Prosecutor. In addition, the Court also notes that the Judgment of the Basic Court was annulled with the approval of the Applicant’s appeals and ex officio, and consequently, the Prosecutor’s appeal remained unconsidered and not assessed (see, mutatis mutandis, Constitutional Court of the Republic of Kosovo, case No. KI45/16, Applicants Muhamet Nikqi and Arbnor Nikqi, Resolution on Inadmissibility, of 20 February 2017, paragraphs 29-33). The Court notes that in the present case the most severe sentence against the Applicant was imposed by the Basic Court, while by the decision of the Court of Appeals the sentence was reduced, which is a discretionary matter of the regular courts. The Court, in accordance with its subsidiary role in individual cases, considers that the regular courts have sufficiently reasoned why in this case the principle of “reformatio in peius” has not been violated to the detriment of the Applicant.

Regarding the principle of equality of arms and the principle in dubio pro reo, with regard to this allegation of the Applicant, the Court notes that the regular courts, namely the Supreme Court, which Judgment is challenged, have reasoned the Applicant’s allegation regarding the taking of statements of the co-accused as credible. Among other things, the Supreme Court in its Judgment states that: “this court finds that in the reasoning of the judgment of the first instance were given the reasons regarding all the appealing allegations, and in particular it was reasoned that the statement of the convict Vahide Badivuku and I.S. are not inadmissible evidence and that there have been no five legal obstacles to their assessment in relation to other evidence, because their statements were given in accordance with Article 123 paragraph 5 of the CPCK”. Based on the above and taking into account the characteristics of the present case, the allegations raised by the Applicant and the facts presented by him, the Court also based on the standards established in its case law in similar cases and the case law of the ECtHR, finds that the right to a reasoned court decision, the principle reformatio in peius, the principle of equality of arms and the principle in dubio pro reo, as constituent elements of the right to fair and impartial trial guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR, have not been violated.

Applicant’s allegations of violation of Article 36 of the Constitution in conjunction with Article 8 of the ECHR, the Court noted that in the present case, the order for interception of telecommunications was based on Article 88 of the CPCK, therefore, it is considered necessary and proportional to the circumstances of the case in question. Therefore, the Court found that there has been no violation of Article 36 of the Constitution and Article 8 of the ECHR.

With regard to the Applicant’s allegations of violation of Article 33.1 of the Constitution in conjunction with Article 7 of the ECHR, the Court assessed that the regular courts have given the reasons for the requalification of the criminal offense from exercising the influence to bribery (see also paragraphs above 174-177). The Court finds that this reasoning shows that the court did not violate the criminal law to his detriment, and reasoning that the requalification of the criminal offense went in favor of the party, because he was sentenced to a more lenient punishment (see paragraph 177). Therefore, this allegation must be rejected as manifestly ill-founded.

Finally, regarding the Applicant KI63/19 – Vahide Badivuku, based on the elaborations above and the characteristics of the present case, the allegations raised by her and the facts presented by her, the Court relying on the standards established in its case law and in similar cases of the case law of the ECtHR, does not find that the procedure of administration of evidence, the principle of equality of arms and the presumption of innocence and the principle in dubio pro reo, as constituent elements of the right to a fair and impartial trial guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR, and found no violation of Article 36 of the Constitution in conjunction with Article 8 of the ECHR.

Regarding Applicant KI66/19 – Idriz Kelmendi, the Court on the basis of the clarifications above states that there has been no violation of the reasoned court decision, the principle of equality of arms and reformatio in peius as constituent elements of the right to a fair trial guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR, and did not find that Article 36 of the Constitution in conjunction with Article 8 of the ECHR, and Article 33.1 of the Constitution in conjunction with Article 7 of the ECHR, have been violated.

Therefore, the Court declared the Referrals as manifestly ill-founded on constitutional basis and declared them inadmissible in accordance with paragraph (2) of Rule 39  of the Rules of Procedure, and the Applicant’s request for holding a hearing was rejected as ungrounded.