Decisions published in August 2023

13.09.2023

In August 2023, in the Constitutional Court:

• Reviewed forty one (41) cases;
• decisions were rendered for thirty eight (38) cases (the publication procedure of which is further subject to the provisions of the Law on the Constitutional Court and its Rules of Procedure);
• published five (5) decisions;

In this period, on the Court’s webpage are published five (5) decisions, namely (i) three (3) Judgments; (ii) one (1) Resolution on Inadmissibility; and (iii) one (1) Decision on interim measure.

Judgments
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1. KO207/22
Applicant: President of the Assembly of the Republic of Kosovo
Published on: 7 August 2023
Confirmation of the proposed constitutional amendment submitted by the President of the Assembly of the Republic of Kosovo, on 21 December 2022, by letter no. 08/3198/DO-1347/1

The Court assessed the proposed constitutional amendment submitted by the President of the Assembly of Kosovo, on 21 December 2022, in order to ascertain whether the latter diminishes the rights and freedoms guaranteed by Chapter II [Fundamental Rights and Freedoms] of the Constitution. The Court concluded that the proposed amendment of Article 22 [Direct Applicability of International Agreements and Instruments] of the Constitution, whereby the United Nations Convention on the Rights of Persons with Disabilities is added to the list of directly applicable international agreements and instruments, does not diminish the rights and freedoms guaranteed by Chapter II of the Constitution. The Court reached this conclusion, after analyzing the main principles established by the aforementioned Convention and the specific positive obligations of the state that the latter provides for, namely, undertaking the necessary legislative measures, as well as other measures, creating mechanisms for its full implementation.

You can read the notification regarding the Judgment by clicking here
You can read the full text of the Judgment and the summary in the two official languages of the Republic of Kosovo and in English by clicking here

2. KI161/21
Applicant: Suzana Zogëjani Sekiraqa
Published on: 7 August 2023
Request for constitutional review of Judgment [Pml. no. 310/2020] of the Supreme Court of Kosovo, of 28 April 2021

The Court assessed the constitutionality of Judgment [Pml. no. 310/2020] of 28 April 2021 of the Supreme Court of the Republic of Kosovo in conjunction with Judgment [PAKR. no. 133/2020], of 3 July 2020 of the Court of Appeals and Judgment [PKR. no. 37/2019] of 24 January 2020, of the Basic Court in Prishtina. By the above-mentioned judgments, the Applicant was sentenced to twenty-five (25) years of imprisonment for committing the criminal offense of “aggravated murder” according to the definitions in points 1.3 and 1.4 of paragraph 1 of Article 179 (Aggravated murder) of the Criminal Code of the Republic of Kosovo, for the murder of her husband, namely the deceased A.S., in 2018. In assessing the constitutionality of the challenged acts, the Court, based on the principles that stem from the case law of the European Court of Human Rights, found that the relevant procedures before the regular courts were not conducted in accordance with the principle of equality of arms between the prosecution and the Applicant’s defense, among other things, because (i) they did not allow the Applicant to confront some of the witnesses in her case ; (ii) they rejected the administration of evidence, namely, the evidence proposed by the defense and according to which, among other things, it results that the Applicant was a victim of domestic violence; as well as (iii) in the specific circumstances of this case, they allowed the questioning of her son, namely the minor, X.X, in a capacity of a witness, during the procedure conducted before the Basic Court, without professional support, namely without the presence of a psychologist. As a result, the Court concluded that the challenged Judgments were rendered in violation of paragraph 1 and 4 of Article 31 [Right to Fair and Impartial Trial] of the Constitution and item d) of paragraph 3 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

3. KI129/22
Applicant: Sasa Milosavljevic
Published on: 17 August 2023
Request for constitutional review of the Decision [PN1. no. H09/2022], of 5 September 2022 of the Court of Appeals and Decision [2022:19820] of 12 August 2022 of the Basic Court in Ferizaj

The Court assessed the constitutionality of Decision [PN1. no. H09/2022], of the Court of Appeals of Kosovo of 5 September 2022 and Decision [2022:19820] of the Basic Court in Ferizaj, of 12 August 2022. The Court, among other things, assessed the Applicant’s allegations regarding the extension of the detention before the indictment was filed in excess of the time limits defined by the Criminal Procedure Code. In the context of the circumstances of the case and based on the principles established by the case law of the European Court of Human Rights, the Court assessed that the relevant Decision of the Court of Appeals is not in compliance with 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, among other things, because while the Court of Appeals upheld the position of the Basic Court regarding the extension of the Applicant’s detention, it did not address the specific and essential claim raised before it, namely it did not answer whether the extension of detention for more than eight (8) months before the indictment was filed for a criminal offense punishable up to five (5) years, was contrary to the provisions of Article 190 (Time Limits for Detention on Remand) of the Criminal Procedure Code.

Resolutions on Inadmissibility
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1. KI152/21
Applicant: Arsim Krasniqi
Published on: 2 August 2023
Request for constitutional review of Decision [AC-AKP no. 01/2021] of the Supreme Court of the Republic of Kosovo, of 30 March 2021

In the Resolution on Inadmissibility in case KI152/21 published by the Court, the latter found that the Applicant’s referral is inadmissible based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, paragraph 2 of Article 47 (Individual Requests) of the Law, item (b) of paragraph (1), paragraph (2) and item (d) of paragraph (3) of Rule 39 (Admissibility Criteria) of the Rules of Procedure , among others, because the Applicant’s allegations in relation to (i) the recognition of property rights, qualify as ratione temporis in accordance with the Constitution; (ii) violation of Article 32 [Right to Legal Remedies] of the Constitution, fall in the category as manifestly ill-founded allegations because the latter are “unsupported or unsubstantiated” claims; and (iii) Article 46 [Protection of Property] of the Constitution, are inadmissible on procedural grounds due to non-exhaustion of all legal remedies.

You can read the full text of the Resolution and the respective summary in the two official languages of the Republic of Kosovo by clicking here

Decisions on interim measures
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1. KO160/23
Applicant: Abelard Tahiri and 11 other deputies of the Assembly of the Republic of Kosovo
Published on: 11 August 2023
Request for constitutional review of “Decision No. Ref. L-VIII, SP-119, dated 11 July 2023, for scheduling the plenary session of 13 July 2023, of the President of the Assembly of the Republic of Kosovo”.

In the Decision on interim measure published by the Court, the latter, assessing and balancing the effects of imposing or not imposing the interim measure and suspending all decisions adopted by the Assembly in the plenary session of 13 July 2023, in the light of the principle of legal certainty as an essential value of the rule of law and the constitutional order of the Republic of Kosovo, decided to reject the request for an interim measure against “Decision No. Ref. L-VIII, SP-119, dated 11 July 2023, for scheduling the plenary session of 13 July 2023, of the President of the Assembly of the Republic of Kosovo”, after finding, among other, that (i) in the context of the subject matter under consideration before the Court, assessed that the decision on scheduling the plenary session is challenged before it, while the interim measure is required in relation to the decisions adopted in the respective session of the Assembly, despite the fact that the Applicants have not challenged these decisions separately/specifically before the Court; (ii) the Applicants have not presented any evidence or justification as to why the suspension of the effect of all decisions of the Assembly adopted in the session of 13 July 2023, contributed to “avoiding risks or irreparable damages” and “public interest”. In its decision to reject the request for interim measure, the Court emphasized that such a finding does not prejudice in any way the admissibility and/or merits of the referral in case KO160/23.

You can read the notification regarding the Judgment by clicking here
You can read the full text of the Decision and the summary in the two official languages of the Republic of Kosovo and in English by clicking here

Note:

This notification has been prepared by the Secretariat of the Court for informational purposes only. The full texts of the decisions have been served to all parties involved in the cases and will be published in the Official Gazette of the Republic of Kosovo within set deadlines.