Constitutional Court

KI56/19 Applicant: Xhevat Thaqi, Constitutional review of Judgment PML. No. 70/2019 of the Supreme Court, of 4 March 2019

KI56/19 Resolution on Inadmissibility of 29 April 2020, published on 19 June 2020

Keywords: Individual referral, manifestly ill-founded referral, substantial non-exhaustion of legal remedies prescribed by law, inadmissible referral

The Applicant is Xhevat Thaqi with residence in Gjakova who challenges the Judgment [PML. No. 70/2019] of 4 March 2019 of the Supreme Court of the Republic of Kosovo.

The Applicant has been in detention on remand since 30 November 2018 due to suspicion of committing the criminal offense of aggravated theft. On 20 December 2018, the Basic Prosecution in Peja filed an indictment against the Applicant, which was confirmed by the Basic Court. The latter, by the Decision [P. No. 223/2018] of 27 December 2018, confirmed and extended the detention of the Applicant for another two months, calculating from 30 December 2018, when the duration of the measure of detention on remand expired. Against this Decision, the Applicant’s lawyer filed an appeal with the Court of Appeals which rejected it as out of time – as the time limit, according to the aforementioned legal provisions, was calculated to have started from the moment the decision was served on the defendant, namely the Applicant. The latter, in this regard, through his lawyer, submitted a request for protection of legality, which was also rejected by the Supreme Court as ungrounded, and at the same time, confirmed the decision-making of the lower courts.

The Applicant alleged that his rights guaranteed by Articles 22, 31 and 53 of the Constitution in conjunction with Article 6 of the ECHR had been violated. In essence, the Applicant files two allegations of violation of his rights guaranteed by the Constitution and the ECHR.  The first category of the Applicant’s allegations relates to Article 31 of the Constitution in terms of the Applicant’s allegations of denial of access to justice and non-reasoning of the court decisions. The second category of the allegations of the Applicant is related to the allegations of violation of Articles 22 and 53 of the Constitution because, according to the Applicant, paragraph 4 of Article 478 of the CPCK is an unconstitutional provision and is not in compliance with the Constitution and ECHR.

In assessing the Applicant’s allegations regarding Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, the Court considers that the Applicant has built his case on the basis of legality, namely on the erroneous interpretation of paragraph 4 of Article 478 of the CPCK by the Court of Appeals and the Supreme Court. As regards the reasoning of the court decisions, the Court considers that the regular courts have fulfilled their obligation to provide sufficient legal reasoning. Therefore, in the circumstances of the present case, the Court considers that the Applicant did not substantiate that the proceedings before the Supreme Court or other regular courts were unfair or arbitrary, or that as a result of erroneous interpretation of the CPCK. The Court reiterates that the interpretation of law is a duty of the regular courts.

As to the second allegation regarding the violation of Articles 22 and 53 of the Constitution because, according to the Applicant, paragraph 4 of Article 478 of the CPCK is an unconstitutional provision and is not in compliance with the Constitution and the ECHR. The Court emphasizes that it agrees with the accurate finding of the Applicant that a law is not above the Constitution and the ECHR and that these two instruments have priority and supremacy over any law. Such a principle for the ECHR is provided for in Article 22 of the Constitution which specifically states: “Human rights and fundamental freedoms guaranteed by the following international agreements and instruments are guaranteed by this Constitution, are directly applicable in the Republic of Kosovo and, in the case of conflict, have priority over provisions of laws and other acts of public institutions.” However, the Court notes that the Applicant should have raised his allegations of unconstitutionality of paragraph 4 of Article 478 of the CPCK before the regular courts or, based on Article 113.8 of the Constitution, to submit a request for incidental control of the constitutionality of that legal provision with the Constitution and/or the ECHR. The Applicant had the opportunity to present his arguments for the alleged collision of this legal provision with the Constitution and the ECHR before the Supreme Court. He did not do so and his allegations of possible collision and unconstitutionality of paragraph 4 of Article 478 of the CPCK – he is raising before the Constitutional Court for the first time.

Therefore, regarding the allegations of violation of the rights of “access to justice” and the “reasoning of the court decisions” guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the ECHR, the Court found that this part of the Referral, in accordance with Rule 39 (2) of the Rules of Procedure, is to be declared inadmissible as manifestly ill-founded on constitutional basis.

Whereas, with regard to the allegation of unconstitutionality of paragraph 4 of Article 478 of the CPCK, the Court found that this part of the Referral, in accordance with Article 47.2 of the Law and Rule 39 (1) (b) of the Rules of Procedure, is to be declared inadmissible due to substantial non-exhaustion of legal remedies provided by law.