Constitutional Court

KI213/19 Applicant: Atdhe Dema, Constitutional review of Decision CML. No. 11/2019 of the Supreme Court of Kosovo of 9 September 2019

KI213/19, Resolution on Inadmissibility of 3 February 2021, published on 1 March 2021

Keywords:  Individual referral, human dignity; fair and impartial trial, security measure, inadmissible referral

The name of the Applicant was included in an article published by the Insider portal, which was titled as follows: “The prosecutor who gave to Afrim Muçiqi over 29 thousand euro is promoted in the Special Prosecution”. This title according to the Applicant is based on untruths and as such the publication of this article harms his reputation.

The Applicant, reacting in defense of his reputation, filed a claim with the Basic Court in Prishtina, requesting the withdrawal of the above-mentioned article and title from the Insider portal through the imposition of a security measure.

The Basic Court, by Decision C. No. 3475/18, rejected the Applicant’s request for imposing a security measure on the grounds that the proposal to impose a security measure during that court phase was ungrounded. Whereas, the Court of Appeals declared the Decision of the Basic Court invalid. The Basic Court in the retrial by Decision C. No. 3475/18 rejected as ungrounded the Applicant’s request on the grounds that the proposal for imposing a security measure does not meet the requirements required by Article 297 of the LCP. The Court of Appeals, acting on retrial, rendered Decision Ac. No. 2504/19 and upheld Decision C. No. 3475/18 of the Basic Court. The State Prosecutor also filed a request for protection of legality with the Supreme Court, against the Judgment of the Court of Appeals. Finally, the Supreme Court rejected his request and upheld the judgment of the Court of Appeals.

The Court noted that in the circumstances of the present case it was clear that the subject of review in the proceedings conducted before the regular courts is the request of the Applicant for the imposition of a security measure against the article of the Insider portal, respectively the removal of the article in question.

With regard to the Applicant’s allegation that the regular courts should have applied the provisions of the civil law on insult and defamation instead of the provisions of the LCP, the Court reiterated that it is not its duty to deal with factual or legal errors that have allegedly been committed by the regular courts and as such declared this allegation as manifestly ill-founded.

The Court noted that the rejection of the Applicant’s proposal for imposing a security measure and his request as a whole by the regular courts had to do with non-fulfillment of the requirements as provided by Article 297 of the LCP.

Regarding the allegation of violation of dignity, the Court found that in accordance with the principle of subsidiarity, it cannot assess the constitutionality of the article of the Insider portal without being previously assessed by the regular courts and as a result, rejected this allegation on the grounds of non-exhaustion of legal remedies.

With regard to the allegation of violation of the right to an impartial court because the same trial panel of the Court of Appeals has twice adjudicated his case, the Court notes that the allegation of partiality of the trial panel of the Court of Appeals was raised for the first time before the Constitutional Court. The Court noted that in accordance with the principle of subsidiarity, the Constitutional Court cannot assess an allegation or an issue which has not been raised and assessed previously by the regular courts, and consequently this allegation was rejected on the grounds of non-exhaustion of legal remedies.

Finally, the Court in accordance with Article 113.7 of the Constitution, Articles 20 and 47 of the Law and Rules 39 (1) (b) and (2) and 59 (2) of the Rules of Procedure declared the Applicant’s Referral inadmissible in its entirety.