Constitutional Court

KI28/19, Applicant: Lutfi Morina, Constitutional review of Decision Ac. No. 4035/18 of the Court of Appeals of 5 October 2018

KI28/19, Resolution adopted on 27 November 2019, published on 10 January 2020

Keywords: individual referral, hearing of witnesses, domestic violence, protection order, inadmissible referral

The Applicant challenges the constitutionality of the Decision [Ac. No. 4035/18] of the Court of Appeals of Kosovo of 5 October 2018, alleging that the challenged Decision was rendered in violation his fundamental rights and freedoms guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution Article 6 of the European Convention on Human Rights.

The Court noted that the Applicant alleges a violation of the right to a reasoned decision as guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR by alleging that the regular courts: (i) have rendered decisions based on inadmissible evidence; (ii) have placed the Applicant on an unequal position with the responding party.

Based on the ECtHR case law, in the circumstances of the present case, the Court assessed the Applicant’s allegations and held that with regard to the testimony of juvenile EL, the Court notes that the regular courts have established the factual situation based on the testimony of many other witnesses. This shows that the testimony of the juvenile EL was not the only or main testimony that could have influenced the outcome of the case or the constitutionality of the process as a whole. The Court also emphasized that the relevant provisions of the legal framework in the Republic of Kosovo allow the courts to question minors and that they have the discretion to determine whether or not a minor will be questioned. The Court, based on its review jurisdiction, reiterated that as a general rule, it is not its duty to substitute its own assessment of the facts with that of the regular courts.

Finally, having regard to the allegations raised by the Applicant and the facts presented by him, the Court also based on the standards established in its own case law in similar cases and in the case law of the ECtHR, found that the Applicant did not prove and sufficiently substantiate his allegation of violation of his fundamental rights and freedoms guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR. Therefore, the Referral, on constitutional basis, was declared inadmissible as manifestly ill-founded.