Constitutional Court

KI15/19, Applicant: Shemsi Ferizi, Constitutional review of Judgment NJN. No. 157/2017 of the Basic Court in Prishtina, of 13 April 2018

KI15 /19, Resolution on inadmissibility of 23 September 2020, published on 28 October 2020

Keywords: individual referral, criminal proceedings, international cooperation, conversion of sentence, criminal case, most favourable law, ratione materiae, inadmissible referral

In the present case, the Criminal Court in Basel-Switzerland had sentenced the Applicant to life long imprisonment for the criminal offence of Murder and Multiple Attempted Murder. Meanwhile, the Applicant had submitted a request to the Swiss authorities for transfer and serving his sentence in the correctional institutions of the Republic of Kosovo.

Based on the request of the Applicant and the Swiss authorities, the Ministry of Justice of the Republic of Kosovo had submitted a request to the Basic Court in Prishtina to undertake actions regarding the transfer of the Applicant from the Swiss Correctional Institution to the Correctional Institution of the Republic of Kosovo. The Basic Court in Prishtina issued a decision to convert the Applicant’s sentence of life long imprisonment imposed by the Criminal Court in Basel. This decision was final and no appeal was allowed against it.

In the Constitutional Court the Applicant alleged, inter alia, violation of Articles 31 [Right to  Fair and Impartial Trial] and 54[Judicial Protection of Rights] of the Constitution in conjunction with Article 6.1 (Right to a fair trial) and Article 2 of Protocol No. 7 (Right of appeal in criminal matters) of the European Convention on Human Rights (hereinafter: ECHR). The Applicant also alleges a violation of Articles 8 and 11 of the Universal Declaration of Human Rights.

As a preliminary issue in this case, the Court had to establish the date when the Applicant has  received the decision of the Basic Court in Prishtina. Given that neither the Basic Court in Prishtina nor the Ministry of Justice could accurately establish when has the Applicant received the challenged decision, the Court, taking into account the seriousness of the case, decided to assess the Referral as  being submitted within the legal deadline of four ( 4) monthly, in order to avoid strict interpretation of procedural rules and access to justice.

The Court concludes that the conversion of the sentence and the transfer of the Applicant was carried out in accordance with the ECtHR test used in the case  Grori v. Albania, because: (i) the Applicant has granted consent for the transfer and conversion of the sentence; and (ii) the transfer and conversion of the Applicant’s sentence has been implemented pursuant to Article 65 of the Law on International Legal Cooperation in Criminal Matters; and, (iii) the Treaty between the Republic of Kosovo and the Swiss Confederation on the Transfer of Sentenced Persons.

As regards the Applicant’s allegations for violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, the Court notes that the Basic Court did not determine the civil rights and obligations nor the merits of the criminal charge during the procedure of  conversion of sentence, it has only complied with the findings submitted by the sentencing State (see Article 65 of the Law on International Legal Cooperation in Criminal Matters No. 04/L-213). Based on the jurisprudence of the ECHR, the procedures related to the enforcement of a sentence are not covered by Article 31 of the Constitution and Article 6 of the ECHR. Consequently, the Court found that the allegation for violation of the right to  fair and impartial trial was incompatible ratione materiae with the provisions of Article 31 of the Constitution in conjunction with Article 6 (1) of the ECHR.

As to the Applicant’s allegation for a violation of Article 54 [Judicial Protection of Rights] of the Constitution in conjunction with Article 13 [Right to an effective remedy] of the ECHR, Article 2 of Protocol No. 7 [Right of appeal in criminal matters] of the ECHR and Article 8 [no title] of the UDHR, the Court noted that  the sentencing State alone has the exclusive  right to decide on any application for review of the judgment and that the Basic Court in Prishtina has jurisdiction over the enforcement procedure of the sentence and that its decision cannot be appealed. However, the Court found that the Applicant’s right to appeal was not violated because he was given the opportunity  and in fact he did submit a constitutional referral to this Court, which is the competent authority to assess the substance of the Applicant’s complaints. The Court added that the right to judicial protection of rights as well as the right to an effective remedy does not guarantee  a favorable outcome for the Applicant and that the effective remedy in the context of Article 54 of the Constitution in conjunction with Article 13 of the ECHR, does not imply a successful legal remedy, but simply an accessible remedy before the competent authority for assessing the substance of the Applicant’s complaints.

While, as regards the allegation for application of more favourable law, the Court assessed that the Applicant’s allegation stating that the former law of the Socialist Autonomous Province of Kosovo is more favourable in his case, it is a manifestly ill-founded allegation as for the criminal in question the said law had envisaged also the death penalty.

Consequently, the Court decided that the Referral must be rejected as inadmissible on constitutional basis as provided for by Article 113 (7) of the Constitution, and Articles 47 and 48 of the Law and as further specified by Rule 39(2) and (3) (b) of the Rules of Procedure.