Constitutional Court

KI76/18, Applicant: Pjetër Boçi, constitutional review of Judgment PML. No. 279/2017 of the Supreme Court of Kosovo of 26 March 2018 and Decision  PN. No. 462/2018 of the Court of Appeals of Kosovo of 28 May 2018

KI76/18, Resolution on inadmissibility, of 22 November 2018, published on 19 December 2018

Keywords: Individual referral, official person, non-exhaustion of legal remedies, manifestly ill-founded referral, ratione materiae

The Basic Court in Prizren, by Judgment P. No. 206/2015, found the Applicant guilty of committing the criminal offense under Article 343 [Accepting Bribes] of the Criminal Code, and sentenced him to an imprisonment sentence of 7 (seven) months, while acquitting him of the charge for the criminal offense foreseen by Article 345 [Trading in Influence] of the Criminal Code of Kosovo. The Applicant filed an appeal against the Judgment of the Basic Court, which was rejected as ungrounded by the Court of Appeals. The Applicant filed a request for protection of legality with the Supreme Court against the Judgment of the Basic Court and the Judgment of the Court of Appeals. The Supreme Court, by Judgment (P. No. 279/2015) rejected as ungrounded the request for protection of legality of the Applicant against the Judgment (PKR. No. 540/2011) of the Basic Court and Judgment (PAKR No. 70/17) of the Court of Appeals.

The Applicant filed a request for review of the criminal procedure with the Basic Court in relation to his case, by presenting additional evidence. The Basic Court, by Decision PKRS. No. 157/2017 rejected as ungrounded the Applicant’s request for review of the criminal proceedings. This decision was also upheld by the Court of Appeals.

The Applicant before the Constitutional Court alleges violation of his rights guaranteed by Articles 31 [Right to Fair and Impartial Trial] and 102 [General Principles of the Judicial System] of the Constitution and Article 6 of the ECHR.

The Court clarified that the Applicant’s allegations related to three different proceedings that took place regarding his case: a) the proceedings for dismissing the indictment; b) the criminal proceedings by which the Applicant was found guilty of the criminal offense of bribery, and c) the proceedings for reviewing the criminal procedure.

Upon reviewing the Applicant’s Referral, the Court, pursuant to Article 48 of the Law on Constitutional Court and Rule 39 (1) (b), (2) and (3) (b) of the Rules of Procedure, found that the Applicant’s Referral:

(i)        as to the allegation that in his case the investigation was terminated and consequently an indictment was filed without a legal basis, the legal remedies provided by law have not been exhausted;

(ii)       as to the Applicant’s allegation that in the criminal proceedings the provisions regarding the definition of “official person” have not been correctly applied, the Applicant did not sufficiently substantiate his allegation of a violation of the right to fair trial; and

(iii)     as to the allegation of the Applicant regarding the review of the criminal procedure the Referral is incompatible ratione materiae with the Constitution.