Constitutional Court

KI90/18, Applicants: Nedvedete Ponosheci and Atdhe Ponosheci, Constitutional review of Judgment Pml. No. 89/2018 of the Supreme Court of the Republic of Kosovo of 8 May 2018, in conjunction with Decision PAKR. No. 397/17 of the Court of Appeals of Kosovo of 19 August 2017, and Judgment PKR. No. 61/14 of the Basic Court in Gjakova of 21 June 2017 

KI90/18, Resolution   of 15 January 2020, published on 5 February 2020 

Keywords: individual referral, ratione materiae, non-exhaustion of legal remedies

The Applicants, as a consequence of the commission of the criminal offense by two persons which resulted in the death of their family member (father of Atdhe Ponosheci and husband of Nedvedete Ponosheci), pursued criminal proceedings in which they were the injured party. As the injured party, they had also participated in the guilty plea agreement of one of the perpetrators of the criminal offense (F.GJ) and requested (i) an increase of the sanction against the latter and (i) to be compensated in the amount of 100,000 €.

The Basic Court in Gjakova by Judgment PKR. No. 61/14 of 21 June 2017, approved the plea agreement of the person F.GJ, and sentenced him to (6) years and six (6) months for the criminal offense, while the Applicants were instructed to pursue their property claims in civil proceedings as provided for in Article 463 paragraph 2 of the Criminal Procedure Code.

The Applicants, dissatisfied with the decision of the Basic Court, filed appeal, stating that they did not agree with the criminal sanction, and that the agreement in respect of the claimed compensation of € 100,000 should be implemented. The Applicants’ appeal was dismissed as inadmissible by the Court of Appeals. Further, the Supreme Court rejected as ungrounded the request for protection of legality, reasoning that the party was rightly instructed in civil dispute before the lower instance courts.

The Applicants therefore complained to the Constitutional Court, in substance, for violation of fair and impartial trial and alleging that (i) the criminal sanction imposed on the person F.GJ. is not proportional; (ii) the guilty plea agreement is unlawful; and that they (iii) have not been compensated in accordance with the plea agreement.

The Constitutional Court, referring to its case law and the case law of the European Court of Human Rights, held that:

• As to the alleged violation of the rights and freedoms guaranteed by Article 31 of the Constitution and Article 6 of the ECHR regarding the requalification of the criminal offense and the criminal sanction imposed on the third person, it is incompatible ratione materiae with the Constitution; and
• As to the Applicants’ allegations of violation of the rights and freedoms guaranteed by Article 31 of the Constitution and Article 6 of the ECHR regarding the request for compensation of damage, it is inadmissible because the Applicants have not exhausted legal remedies.