Constitutional Court

KI 126/17, Constitutional review of Judgment PML. No. 83/2017 of the Supreme Court of Kosovo, of 26 May 2017

KI 126/17, Applicant: A. K.

Resolution on Inadmissibility of 23.05.2018

Key words: individual referral, right to fair and impartial trial, interim measure, identity-disclosure, manifestly ill-founded

The Applicant, in a capacity of the driver, hit person A.C., who passed away as a result of the injuries sustained in the traffic accident. The Prosecution indicted the Applicant and the regular courts found him guilty for committing the criminal offence “endangering public traffic” and sentenced him to effective imprisonment for a term of one (1) year.

The subject matter of the Referral was the constitutional review of the abovementioned Judgment of the Supreme Court, which allegedly violated the Applicant’s right to fair and impartial trial as guaranteed by the Constitution and the ECHR. The Applicant requested the Court to order the Supreme Court to render a new Judgment through which it would annul the decisions of the Court of Appeals and of the Basic Court and remand the case for retrial. In addition, the Applicant also requested the Court: i) to impose an interim measure, through which the commencement of the execution of the imprisonment sentence would be suspended until a decision is taken by the Court; and ii) not to disclose the identity of the Applicant because of sensitive family matters.

The Court declared the Referral inadmissible and rejected the Applicant’s request for interim measures as ungrounded. The Court considered that the Applicant’s Referral did not meet the admissibility requirements because the Referral was manifestly ill-founded on constitutional basis. After reviewing the regular court proceedings, the Court found that the Supreme Court and other lower courts reasoned their decisions and the latter were not in any way unfair or arbitrary. The Applicant’s arguments fell into the sphere of legality and were not raised at the constitutional level. The presented facts did not in any way justify the alleged violation and there was lack of substantiation on constitutional level from the Applicant – who bore the burden of proof to convince the Court of the alleged violation.

The Court reiterated the importance of the “fourth instance court” doctrine by emphasizing that it is not its role to deal with errors of facts or law allegedly committed by the regular courts when assessing the evidence or applying the law (legality), unless and in so far as they may have infringed the rights and freedoms protected by the Constitution (constitutionality).

The Court approved as grounded the Applicant’s request for non-disclosure of his identity publicly considering that the Applicant provided sufficient reasoning, as required by the Rules and Procedures, as to why his identity should not be disclosed.