Constitutional Court

KI12/19, Applicant, Arben Mërxha, constitutional review of Decision Pml. No. 313/2018 of the Supreme Court of 10 December 2018

 KI12/19, Resolution on Inadmissibility of 10 April 2019, published on 7 May 2019

Keywords: Individual referral, subsidiary prosecutor, charges against third person, ratione materiae  jurisdiction

The Applicant, acting as a subsidiary prosecutor, initiated criminal lawsuit in the Basic Court in Peja against person G.D., accusing him of committing the criminal offense under Article 219 [Irresponsible Medical Treatment] of the Provisional Criminal Code of Kosovo, of 6 July 2003 (hereinafter: PCCK). The Basic Court in Peja – Branch in Deçan (hereinafter: the Basic Court), by Judgment P. No. 72/2016, acquitted person G.D. of charges filed by the Applicant, as a subsidiary prosecutor. Following the Applicant’s appeal, the Court of Appeals, by the Judgment (PA1, No. 595/2018), rejected as ungrounded the Applicant’s appeal and upheld the Judgment (P. No. 72/2016) of the Basic Court. The Applicant filed a request for protection of legality against the Judgment of the Basic Court (P. No. 72/2016) and the Judgment of the Court of Appeals (PA1. No.595/2018). The Supreme Court by Decision (Pml. No. 313/2018), rejected as inadmissible the Applicant’s request for protection of legality against the Judgment (P. No. 72/2016) of the Basic Court and the Judgment (PA1, No. 595/2018) of the Court of Appeals.

The Applicant alleged before the Constitutional Court that the regular courts violated his rights guaranteed by Articles 31 [Right to Fair and Impartial Trial], 46 [Protection of Property] and 54 [Judicial Protection of Rights] of the Constitution. This is because, according to him, the regular courts a) did not reason their decisions, b) did not correctly assess the facts presented by him and the experts’ expertise; and c) have applied the law in erroneous and arbitrary manner.

In this regard, the Court emphasized that in the present case, the main allegations of the Applicant relate to the criminal proceedings he initiated against the third party, namely the person G.D. The Court, referring to its case law, stated that the ECHR does not provide the right to prosecute or punish a third party for a criminal offense, nor does the Constitution provide such a right. In this way, the Applicant’s allegation of a violation of the right to fair trial, during the conduct of proceedings against a third person, G.D. does not fall within the scope of the title “as to any criminal charges” contained in Article 31 of the Constitution.

Therefore, the Court considers that the Applicant’s complaint regarding the criminal proceedings against the third party, in this case G.D., does not fall within the scope of the right to a fair trial under Article 31 of the Constitution and Article 6, paragraph 1 of the ECHR, therefore the Applicant’s request is incompatible ratione materiae with the Constitution. Therefore, in accordance with Article 113, paragraph 7 of the Constitution, Article 47 of the Law and Rule 39 (3) (b) of the Rules of Procedure, the Applicant’s Referral was declared inadmissible.