Constitutional Court

Joint cases nos. KO114/23, KO192/23, KO227/23 and KO229/23, Applicant The Supreme Court of the Republic of Kosovo,  Constitutional review of paragraph 2 of article 4, paragraph 4 of article 432, and paragraph 2 of article 438 of the Criminal Procedure Code of the Republic of Kosovo No.08/L-032

KO114/23, KO192/23, KO227/23 and KO229/23, Judgment of 15. May 2024, published on 17. July 2024

 Keywords: Institutional Referral, admissible Referral, equality of arms, ne bis in idem, rights of the defendant, extraordinary legal remedy, concluded criminal procedure

The Constitutional Court of the Republic of Kosovo has decided in the joined cases KO114/23, KO192/23, KO227/23 and KO229/23, submitted by the Supreme Court of the Republic of Kosovo based on paragraph 8 of article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo, regarding the constitutional review of paragraph 2 of article 4 (Ne Bis In Idem), paragraph 4 of article 432 (Grounds for Filing a Request for Protection of Legality) and paragraph 2 of article 438 (Judgment on Request for Protection of Legality) of the Criminal Procedure Code of the Republic of Kosovo No. 08/L-032 (Criminal Procedure Code).

The Court, unanimously, decided to declare the referral admissible and found (i) unanimously, that the phrasing “or terminating” of paragraph 4 of article 432 (Grounds for Filing a Request for Protection of Legality) of the Criminal Procedure Code, is not contrary to article 29 [Right to Liberty and Security] of the Constitution in conjunction with article 5 (Right to liberty and security) of the European Convention on Human Rights; (ii) unanimously, that paragraph 2 of article 4 (Ne Bis In Idem) of the Criminal Procedure Code, is not contrary to article 34 [Right not to be Tried Twice for the Same Criminal Act] of the Constitution in conjunction with paragraph 2 of article 4 (Right not to be tried or punished twice) of Protocol no. 7 of the European Convention on Human Rights; and (iii) by five (5) votes in favor and four (4) against, that the phrasing “unless if the final decision is manifestly inappropriate or based on serious error” of paragraph 2 of article 438 (Judgment on Request for Protection of Legality) of the Criminal Procedure Code, is not contrary to article 34 [Right not to be Tried Twice for the Same Criminal Act] of the Constitution in conjunction with paragraph 2 of article 4 (Right not to be tried or punished twice) of Protocol no. 7 of the European Convention on Human Rights.

The Judgment first clarifies that according to paragraph 2 of article 438 (Judgment on Request for Protection of Legality) of the Criminal Procedure Code, when the Supreme Court considers that the request for the protection of legality, submitted to the detriment of the defendant, is grounded, it only finds a violation of the law, without affecting the final decision. This procedure applies both to the decision of the Court of Appeals regarding the termination of detention, as well as to final decisions by which the criminal procedure was concluded or the indictment was rejected. Having said that, exceptionally, based on the contested provisions of the Criminal Procedure Code, the Supreme Court, through the request for protection of legality, can also decide to the detriment of the defendant, if the contested final decision is “manifestly inappropriate or based on serious error”. According to the clarifications given in the Judgment, the referring Court considers that this possibility is in contradiction with the principle ne bis in idem taking into account that it (i) affects the reopening of the final decision to the detriment of the defendant; and moreover, (ii) the Criminal Procedure Code, does not clearly define when a final decision is “inappropriate” or “based on serious error”.

In the aforementioned context, the Judgment clarifies the general principles established through the case-law of the European Court of Human Rights regarding the ne bis in idem principle, guaranteed through article 34 [Right not to be Tried Twice for the Same Criminal Act] of the Constitution in conjunction with article 4 (Right not to be tried or punished twice) of Protocol no. 7 of the European Convention on Human Rights, according to which, in principle, no one can be prosecuted or punished twice for the same criminal offense for which he/she was “finally” convicted or acquitted, unless the case is reopened in accordance with the law and criminal procedure, when there are new or newly discovered facts or there was a fundamental flaw in the previous proceedings. According to the case-law of the European Court of Human Rights, in order for the guarantees related to the ne bis in idem principle to be applicable, the respective cumulative criteria must be met, namely the assessment whether (i) both proceedings are “criminal” in nature; and if this is the case, (ii) both proceedings are related to the same offense for which a person has been “acquitted or convicted” by a “final” decision. According to the clarifications provided, the case-law of the European Court of Human Rights clarifies the characteristics of the legal remedies that may be filed against a final decision, as well as the nature of a “final” decision. In relation to the characteristics of the legal remedy, the aforementioned case-law, among others, clarifies that in assessing whether a legal remedy is “ordinary” or “extraordinary”, the law and domestic procedures are taken as a starting point, but the assessment is based on the characteristics of the respective legal remedy and not only on its formal name, namely if the same is in accordance with the principle of legal certainty, including in the context of (i) limited discretion, including in terms of time limits available to use a particular legal remedy; and (ii) the balance between the parties in the possibility of its use. Whereas, related to the nature of the “final” decision, the aforementioned case-law, among others, clarifies that (i) the “final” decision must include the declaration of “innocence or punishment of the person”; and (ii) a decision is “final” if the latter has become an adjudicated matter or res judicata, namely if the decision is irrevocable, which, among others, means that against that decision, there is no longer any possibility of filing legal remedies, the parties have exhausted these remedies, or the deadlines set by law have elapsed without filing them.

In the application of these principles, the Judgment clarifies that, according to the provisions of the Criminal Procedure Code, the legal remedy of the request for protection of legality (i) can be filed within three (3) months from the when the final decision was served, and, consequently, it is clearly limited within a reasonable period of time; and (ii) it is open to both the defendant and the state prosecution, while (iii) it can be filed in cases of violations of substantive and procedural law, but not for erroneous or incomplete determination of the factual situation. On the other hand, according to the clarifications provided, as far as the legal remedy  of the request for protection of legality is invoked against the final decision of the Appellate Court, the same criminal proceedings continues until the “final” decision of the Supreme Court. More precisely, the decision of the Supreme Court following from the request for protection of legality, is a continuation of the same criminal proceedings and does not necessarily result in a second proceedings, namely new criminal proceedings for the purposes of article 34 [Right not to be Tried Twice for the Same Criminal Act] of the Constitution in conjunction with article 4 (Right not to be tried or punished twice) of Protocol no. 7 of the European Convention on Human Rights. Consequently, under such circumstances, the guarantees established in article 4 (Right not to be tried or punished twice) of Protocol No. 7 of the European Convention on Human Rights cannot be applied regarding the reopening of a case in which a person was convicted or acquitted by “final decision”. According to the clarifications given in the Judgment, for the purposes of the aforementioned provisions, the Criminal Procedure Code has foreseen the extraordinary legal remedy of reopening of the criminal proceedings and which, unlike the legal remedy of the request for protection of legality, clearly falls under the scope of article 4 (Right not to be tried or punished twice) of Protocol No. 7 of the European Convention on Human Rights. Moreover, according to the clarifications provided in the Judgment, it is quite clear that article 4 (Right not to be tried or punished twice) of Protocol No. 7 of the European Convention on Human Rights, is not applicable to cases of detention, because in those proceedings, the final “acquittal or conviction” for a criminal offense is not decided upon, since the latter is only related to ensuring the presence of the defendants throughout the ongoing criminal proceedings.

(ii) the possibility of the Supreme Court, through the request for protection of legality filed by the State Prosecutor, including against the final decision of the Appellate Court on the termination of detention, to decide to the detriment of the defendant in the event that the final decision is “manifestly inappropriate or based on serious error”

Initially and related to the possibility of the State Prosecutor to challenge the decision of the Court of Appeals on the termination of detention before the Supreme Court by way of the request for protection of legality, the Judgment, elaborating and interpreting the principles stemming from article 29 [Right to Liberty and Security] of the Constitution in conjunction with article 5 (Right to liberty and security) of the European Convention on Human Rights, clarifies that the Criminal Procedure Code, among others, has established: (i) detention as a measure to ensure the presence of defendants in the proceedings; (ii) the procedure according to which detention is imposed and extended, also determining the right to appeal against decisions on detention, both for the defendant and for the state prosecutor; (iii) the right to submit a request for protection of legality against the final decision, both in the case of the imposition and extension of detention, as well as in the case of termination of detention; (iv) that the request for protection of legality may be used by the prosecution against the decision to terminate detention, just as it can be used by the defendant  against the decision on imposition or extension of detention; and that according to the Criminal Procedure Code, (v) all rights in the procedure that are available to the prosecution, are also available to the defendant, and as such, according to the clarifications in the Judgment, respect the principle of “adversariality” and that of “equality of arms”.

Having said that, disputable concerning the contested provisions of the Criminal Procedure Code, is whether, through the request for protection of legality, the Supreme Court can decide to the detriment of the defendant, including in cases of detention. In this context and regarding the effects of the Supreme Court’s decision-making on the request for protection of legality to the detriment of the defendants, the Judgment reiterates that based on paragraph 1 of article 438 (Judgment on Request for Protection of Legality) of the Criminal Procedure Code, when the Supreme Court determines that the request for protection of legality is grounded, it renders a judgment by which, taking into account the type of violation, it (i) modifies the final decision; (ii) annuls the decision of the basic court and of the higher court in whole or in part and remands the case for retrial; or (iii) is limited only to finding the violation of the law, while based on paragraph 2 of this article, which has also been contested before the Court, the Supreme Court may also exceptionally decide to the detriment of the defendant, if the final decision is “manifestly inappropriate or based on serious error”.

Following from the above, the Judgment clarifies that, in principle, in circumstances in which the Supreme Court assesses that the request for protection of legality filed to the detriment of the defendant is grounded, it is limited only to finding the violation of the law, rendering thus a declaratory decision. Having said this and exceptionally, the latter (i) modifies the final decision; or (ii) annuls in whole or in part the decision of the basic court and of the higher court, and remands the case for retrial to the detriment of the defendant, when a decision is “manifestly inappropriate” or “based on serious error”. According to the clarifications given, the circumstances in which the decision-making of the Supreme Court may result to the detriment of the defendant, encompass very serious legal, procedural or substantive violations, which call into question in their entirety the integrity of the decision-making that resulted into the final decision of the Appellate Court. According to the clarifications provided in the Judgment, any decision-making by the Supreme Court, including based on legal mechanisms to ensure consistency in its case law, to the detriment of the defendant, must be in full compliance with the exceptions provided by the case-law of the European Court of Human Rights, pursuant to the obligations stemming from article 53 [Interpretation of Human Rights Provisions] of the Constitution and may be subject to the assessment of the Constitutional Court under the provisions of paragraph 7 of article 113 [Jurisdiction and Authorized Parties] of the Constitution.

Finally, based on the case-law of the European Court of Human Rights, the Judgment emphasizes the fact that in the event that the Supreme Court, through the request for protection of legality, exceptionally, finds that the contested decision is “manifestly inappropriate or based on serious error”, it is obliged to offer the parties all the procedural safeguards guaranteed by the Constitution and the European Convention on Human Rights. More specifically, in determining whether the latter, (i) modifies the final decision; or (ii) annuls the decision of the basic court and of the higher court in whole or in part, and remands the case for retrial, it must make those legal solutions it considers ensure the rights of the defendants, as guaranteed by the Constitution, the European Convention on Human Rights and the Criminal Procedure Code, with emphasis on the guarantees stemming from article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with article 6 (Right to a fair trial) of the European Convention on Human Rights, which establish, among others, (i) the right to be heard; (ii) the principle of “adversariality” and of “equality of arms”; and (iii) the right to legal remedies and judicial protection of rights.