Notification on decision in Case KI 161/21

The Constitutional Court of the Republic of Kosovo has decided regarding the Referral in case KI 161/21, submitted by Suzana Zogëjani Sekiraqa. The latter, based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo, challenged before the Court the 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 the Judgment [PKR. no. 37/19] of 24 January 2020 of the Basic Court of Prishtina.

The Court decided with majority that (i) the Referral is admissible for review on merits; and (ii) held that the Judgement [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 the Judgment [PKR. no. 37/19] of 24 January 2020 of the Basic Court of Prishtina, are not in compliance with 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.

The Court’s Judgment clarifies that the circumstances of the present case, which are elaborated in detail in the Judgment to be published, are related to the sentence of the Applicant to twenty-five (25) years of imprisonment for the murder of her husband, namely the deceased A.S., in 2018. More precisely, by the Judgment [PKR. no. 37/19] of 24 January 2020 of the Basic Court in Prishtina, the Applicant was found guilty of committing the criminal offense of “Aggravated Murder” as it is established in items 1.3 and 1.4 of paragraph 1 of Article 179 (Aggravated Murder) of the Criminal Code of the Republic of Kosovo.

The Judgment further elaborates the circumstances that preceded the criminal proceedings against the Applicant, namely and among other things, the fact that (i) the Applicant from 2007 to 2018, initially before the competent institutions of the Republic of Kosovo and afterwards, before the authorities of the Republic of France, reported that she was a victim of domestic violence; (ii) from 2010 to 2018, at various periods of time, she and her children were provided shelter by the French authorities; (iii) in 2018 the Court of Lyon in the Republic of France found guilty and sentenced for domestic violence now the deceased A.S., who was later granted conditional release; whereas (iv) on 21 September 2018, A.S. was deprived of life by the Applicant, who following this, together with her children, returned to the Republic of Kosovo, where she reported herself to the Embassy of the Republic of France in the Republic of Kosovo, and on 4 October 2018, the latter was arrested by the competent authorities of the Republic of Kosovo. The criminal proceedings in the circumstances of the present case concluded with the issuance of the challenged Judgment [Pml. no. 310/220] of 28 April 2021 of the Supreme Court.

The Applicant in the proceedings before the regular courts did not challenge the act which she was charged with, however, in the course of the criminal proceedings against her, she has consistently and among others, requested (i) the relevant psychiatric examination; (ii) to confront the witnesses whose testimonies were obtained by the French authorities, but which in the course of the criminal proceedings, were only read out during the main trial and the Applicant did not have the opportunity to confront them at any stage of the criminal proceedings; (iii) to have the testimonies, including those of the French authorities regarding the fact that she was a victim of domestic violence taken into account; and challenged (iv) the questioning of her son, namely the minor, X.X, as a witness during the proceedings in the Basic Court, without professional support, namely without the presence of a psychologist. The requests and/or claims of the Applicant were rejected by the regular courts. As a result, the Applicant raises the same claims before the Court, challenging the relevant Judgments of the regular courts, with the allegations that the latter were rendered in violation of the procedural guarantees established by 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, with emphasis on the violation of the constitutional principle of equality of arms.

In the context of the Applicant’s claims, the Court (i) first elaborated on the general principles regarding the principle of equality of arms based on its case law and that of the European Court of Human Rights, including the relevant principles stemming from the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) and the Convention on the Rights of the Child, directly applicable in the legal order of the Republic of Kosovo and with precedence over the applicable laws, and following this, (ii) applied the latter to the specific circumstances of the present case. According to the detailed clarifications in the Judgment of the Court, the latter, among other things, initially emphasized that based on constitutional guarantees and those established in the European Convention on Human Rights, anyone accused of a criminal offense has the right to cross-examine witnesses and to request the mandatory appearance of witnesses, experts and other persons, who can clarify the facts, guarantees which are further specified in the applicable laws of the Republic of Kosovo.

In the circumstances of the present case and in the context of the constitutional principle of equality of arms, the Court, among other things, emphasized that in the criminal proceedings before the regular courts, the prosecution and the defense were not treated equally, among other things, taking into account that (i) the Applicant and/or her defense, at any stage of the criminal procedure, did not have the opportunity of confronting the witnesses or the testimonies of the latter, whose statements were read out in the judicial process, but with respect to which, based on the reasoning of the regular courts, contrary to the constitutional guarantees and the case law of the European Court of Human Rights, no procedural action was taken so that the Applicant could have been provided with such an opportunity; (ii) the requests of the Applicant and/or her defense to present the evidence, including those of the French authorities, based on which it could be proven that she was a victim of domestic violence, were rejected by all court instances; and (iii) in the specific circumstances of the present case, the continuous refusal of the regular courts to perform the psychiatric examination of the Applicant is contrary to the guarantees defined in the context of the specific circumstances of the present case through the case law of the European Court of Human Rights, among others, in Judgment Gaggl v. Austria, moreover, taking into account the fact that the reasoning of the Basic Court itself uses prejudicial language against the Applicant.

Additionally, and importantly, the Judgment elaborates on the applicable principles and standards, including through international instruments, in cases where minors testify in court proceedings. Referring to (i) Article 50 [Rights of Children] of the Constitution; (ii) Article 3 (no title) of the Convention on the Rights of the Child; (iii) obligations stemming from Article 18 (General obligations) of the Istanbul Convention and (iv) the case law of the European Court on Human Rights, the Court emphasized the fact that all public authorities, including courts, have the obligation to protect the best interests of the child in criminal proceedings, and that in the circumstances of the present case, the courts failed to fulfill this obligation, taking into account, among other things, the fact that the minor X.X., was the only eyewitness in the circumstances of the present case, in a context in which he testified in a criminal case related to the murder of his father, for which his mother was accused, and that the latter was interrogated without professional support, namely without the presence of a psychologist and/or adequate professional. The Court emphasized that in terms of the positive obligations defined by the Constitution and the international instruments, including the relevant case law of the European Court of Human Rights, the best interest of the child should be the first and foremost important consideration for all public authorities, including the justice system.

Based on the above, the Court concluded that the relevant judgments of the regular courts were rendered in violation of the constitutional principle of equality of arms and, therefore, contrary to the procedural guarantees embodied in paragraphs 1 and 4 of Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with item d) of paragraph 3 of Article 6 (Right to a fair trial) of the European Convention on Human Rights. As a result, the Court declared the latter invalid and remanded the relevant criminal case to the Basic Court in Prishtina for retrial.

In the end, the Court emphasized the fact that the effects of this Judgment are only related to the findings in terms of the procedural guarantees embodied in the aforementioned provisions of the Constitution and the European Convention on Human Rights, regarding the violation of the principle of equality of arms in the context of the conducted criminal proceedings, and that the Court does not in any way prejudice the merits or the course of the criminal proceedings in the retrial procedure, issues these which are within the full competence of the Basic Court in Prishtina, as stipulated by the relevant provisions of the Criminal Code and the Criminal Procedure Code of the Republic of Kosovo.

This translation is unofficial and serves for informational purposes only.

Note:

This press release was prepared by the Secretariat of the Court for informational purposes only. The full text of the decision will be submitted to the parties involved in the case, will be published on the Court’s website and in the Official Gazette, once the relevant procedures established in the Law on the Constitutional Court and the Rules of Procedure of the Court have been completed. The summary published through this notice may be subject to language and technical corrections in the final draft of the decision. To receive notifications on the decisions from the Constitutional Court please register at the Court’s website: https://gjk-ks.org/en/