Constitutional Court

KI167/20 and KI170/20, Applicants: Tasim Zhuniqi and Nasip Zhuniqi,  Constitutional review of Judgment Pml. No. 344/2019 of the Supreme Court of the Republic of Kosovo, of 2 June 2020

KI167/20 and KI170/20, Resolution on Inadmissibility, of 21 July 2021, published on 17 August 2021

Keywords: individual referral, requalification of criminal offence, inadmissible referral, manifestly ill-founded referral, non-exhaustion of legal remedies 

It follows from the case file that against the Applicants, on 27 March 2017, the Basic Prosecution in Gjakova filed the Indictment [PP/I. No. n38/2016] against the Applicants under the grounded suspicion that: (i) on 26 March 2016 in co-perpetration they committed the criminal offense of “murder” under Article 178 in conjunction with Article 31 of Criminal Code of the Republic of Kosovo No. 04/L-082 (hereinafter: CCRK), depriving the deceased N. K. of his life (ii) they committed the criminal offense of “unauthorized ownership, control or possession of weapons” under Article 374, paragraph 1 of the CCRK; and further; that (iii) the  Applicant in case KI170/20 also committed the criminal offense of “causing general danger” under Article 365, paragraph 3 in conjunction with paragraph 1 of the CCRK. On 3 May 2017, the Basic Prosecution Office filed a modified Indictment with the Basic Court based on the mandatory Instruction of the Office of the Chief State Prosecutor [NA. No. 140/2017] of 19 April 2017 (hereinafter: the Mandatory Instruction, of 19 April 2017), by which the re-qualification of the criminal offense of “murder” in co-perpetration in the criminal offense of “aggravated murder” in co-perpetration under Article 179, paragraph 1, subparagraphs 1.4 and 1.5 in conjunction with Article 31 of the CCRK was requested. The issue of re-qualification of the criminal offense was raised both in the procedure for dismissal of the indictment and in the procedure of the court hearing. In the court hearing procedure, the Basic Court and the Court of Appeals found that this allegation was reviewed in the second hearing procedure, namely the procedure of dismissal of the Indictment by Decision PKR. No.36/2017, of 5 June 2017 of the Basic Court and Decision PN. No. 520/2017, of 6 July 2017 of the Court of Appeals. However, the Supreme Court by its challenged Judgment addressed and elaborated the same allegation raised in the requests for protection of legality and consequently, had also provided a finding regarding the grounds of this allegation for requalification of the criminal offence, stating that “the change of the indictment by re-qualification of the criminal offense from murder in co-perpetration to aggravated murder in co-perpetration was not made unlawfully and that no legal provision prohibits the Prosecutor from changing the charge before the initial hearing.”

The Applicants before the Court; (i) challenge the issue of re-qualification of the criminal offence; whereas the Applicant in case KI167/20 also alleged: (ii) lack of impartiality on the part of the regular courts; (iii) and that the regular courts did not take into account the remarks given by Judgment PAKR. No. 256/2018, of 29 June 2018 of the Court of Appeals. The Applicants raise the abovementioned allegations in terms of violation of Article 31 [Right to Fair and Impartial Trial], Article 102 and Article 109 of the Constitution. 

Initially, regarding the alleged violation of Articles 102 and 109 of the Constitution, the Court recalls its general principle that Articles of the Constitution which do not directly regulate fundamental rights and freedoms do not have an independent effect. Their effect applies solely to the “enjoyment of rights and freedoms” guaranteed by the provisions of Chapters II [Fundamental Rights and Freedoms] and III [Rights of Communities and Their Members] of the Constitution. In this regard, the Court noted that, in essence, the Applicants’ allegations regarding Articles 102 [General Principles of the Judicial System] and Article 109 [State Prosecutor] of the Constitution are related to the alleged violation of Article 31 [Right to Fair and Impartial Trial] of the Constitution.

First, regarding the allegation of re-qualification of the criminal offense, the Court considered that the Applicants’ referrals are inadmissible. In this respect, the Applicants were able to conduct two criminal proceedings, namely the procedure of dismissal of indictment and the court hearing procedure based on adversarial principle; that they were able to adduce the arguments and evidence they considered relevant to their case at the various stages of those proceedings; they were given the opportunity to challenge effectively the arguments and evidence presented by the responding party; and that all the arguments, viewed objectively, which were relevant for the resolution of their case were duly heard and reviewed by the regular courts; that the factual and legal reasons against the challenged decisions were examined in detail; and that, according to the circumstances of the case, the proceedings, viewed in entirety, were fair. Therefore, the Court found that this allegation is manifestly ill-founded on constitutional basis as established in Article 47 of the Law and Rule 39 (2) of the Rules of Procedure.

Secondly, with regard to the Applicant’s allegation in case KI167/20 of lack of impartiality of the regular courts, the Court found that this allegation was not raised by the Applicant before the regular courts, and consequently, declared it inadmissible on the grounds of substantial non-exhaustion of all legal remedies, as required by paragraphs 1 and 7 of Article 113 of the Constitution, paragraph 2 of Article 47 of the Law and item (b) of paragraph (1) of Rule 39 of the Rules of Procedure.

Finally, with regard to the Applicant’s allegation in case KI167/20 for disregarding the remarks given by Judgment PAKR. No. 256/2018, of 29 June 2018 of the Court of Appeals by the regular courts during the court hearing, the Court found that this allegation is manifestly ill-founded on constitutional basis, as established in Article 47 of the Law and paragraph (2) of Rule 39 of the Rules of Procedure.