- The Constitutional Court
KI159/18, Applicant: Azem Duraku, Constitutional review of Decision [PML. No. 277/2017] of the Supreme Court of 30 April 2018, which rejected his request for protection of legality against the Decision [PN. No. 191/2016] of the Court of Appeals of Kosovo of 1 April 2016
KI159/18, Resolution on Inadmissibility of 3 April 2019, published on 8 May 2019
Keywords: individual referral, Resolution on inadmissibility, reiteration of allegations, manifestly ill-founded
At the outset, the Court recalls that the Applicant had already submitted the Referral to the Court on 7 April 2016, registered with number KI60/16. The Court regarding the Referral KI60/16 decided by the Resolution on Inadmissibility of 15 November 2016.
As to the Applicant’s allegations, the Court notes that in this Referral KI159/18, he also alleges violations of the same articles of the Constitution and the ECHR which he also cited in the Referral KI60/16, and those allegations relate to the violations of the rights and freedoms guaranteed by Article 7 [ Values], Article 24 [Equality Before the Law], Article 31 [Right to Fair and Impartial Trial], Article 32 [Right to Legal Remedies], Article 34 [Right not to be Tried Twice for the Same Criminal Act], Article 36 [Right to Privacy], Article 54 [Judicial Protection of Rights], Article 102 (3) [Courts shall adjudicate based on the Constitution and the law), Article 109 [State Prosecutor] of the Constitution, as well as Article 6 (Right to a fair trial), Article 8 (Right to respect for private and family life), Article 13 (Right to an effective remedy) of the ECHR.
The Court further notes that the Applicant also alleged in the Referral KI159/18 that the courts violated the Code of Criminal Procedure no. 04/L-123, namely Articles 156/158 (3), 159 (1), 445 (1) and (2) of the CPC, which do not allow to proceed with the criminal proceedings to the detriment of the accused, or to re-initiate criminal proceedings due to existence of preclusive deadlines for filing the indictment. In support of these allegations, the Applicant mentioned several articles of the CPC, which have allegedly been violated by the regular courts.
The Court all the allegations it has already assessed in Referral KI60/16, considers the request for repetition of the previous referral in relation to questions which the Court has already decided.
Therefore, pursuant to Rule 35 (5) of the Rules of Procedure, the Court summarily rejects that part of the allegation from referral KI159/18 as inadmissible.
As to the allegations in Referral KI 159/18, the Court considers that nothing in the case presented by the Applicant indicates that the proceedings before the Basic Court, the Court of Appeals and the Supreme Court were in any way unfair or arbitrary in order for the Constitutional Court to be satisfied that the core of the right to fair and impartial trial was violated or that the Applicant was denied any procedural guarantees, which would lead to a violation of that right under Article 31 of the Constitution or Article 1 paragraph 1 of Article 6 of the ECHR.
The Court based on the above, finds that nothing in the case presented by the Applicant indicates that the proceedings of the Basic Court, the Court of Appeals and the Supreme Courts violated in any way his constitutional rights and freedoms or the rights and freedoms guaranteed by the ECHR.
Therefore, the Applicant’s Referral is rejected in one part in accordance with Rule 35 (5) of the Rules of Procedure, while the allegations from Referral KI159/18 are rejected as manifestly ill-founded on constitutional basis in accordance with Rule 39 (2) of the Rules of Procedure.
The Court also rejected the request for an interim measure.
KI – Individual Referral