Notification on decision in case KI11/24

The Constitutional Court of the Republic of Kosovo decided on referral KI11/24, submitted by Zekë Jasiqi, whereby the constitutional review of the Decision [PN. no. 1420/23 of 15 November 2023 of the Court of Appeals of Kosovo was requested The Court decided, unanimously, to (i) declare the referral admissible; and (ii) to hold that Decision [PN. no. 1420/23] of 15 November 2023 of the Court of Appeals is not contrary to paragraph 5 of Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with sub-paragraph (c) of paragraph 3 of Article 6 (Right to a fair trial) of the ECHR.

The Judgment initially clarifies the circumstances of the present case related to the criminal report [2018-EC-262] filed by the Serious Crimes Prosecutor’s Office in Prishtina against the Applicant as well as persons I.O., I.B, A.T., M.M., R.H.,E. L., and S. N., on the grounds of the reasonable suspicion that they have committed the criminal offense (i) “usury” under Article 343 (Usury) in conjunction with Article 31 (Co-perpetration) of Criminal Code no. 04/082 of the Republic of Kosovo; (ii) “extortion” under Article 340 (Extortion) of the Criminal Code; and (iii) “fraud” under Article 335 (Fraud) of the Criminal Code against the injured party F.D. The Applicant appointed lawyer A.Q as his defense counsel in the criminal proceedings, who was also the authorized defense counsel of the person A.T.

According to the clarifications given, during the first hearing of the criminal case in the Basic Court regarding the indictment against the Applicant, the State Prosecutor, in addition to reading the indictment, requested the Basic Court to determine whether the lawyer A.Q. may be a defense counsel of the Applicant, given that the same lawyer also appears as a defense counsel of the person A.T., in the relevant criminal proceedings. The Basic Court reviewed the request of the Prosecution, rendering a Decision whereby it rejected the possibility of lawyer A.Q. being the defense counsel of the applicant, emphasizing that paragraph 1 of Article 54 (Limits of Representation by Defense Counsel) of the Criminal Procedure Code of the Republic of Kosovo stipulates that: “in criminal proceedings a defense counsel is not allowed to represent two or more defendants in the same case”. The Applicant filed an appeal against the aforementioned decision of the Basic Court with the Court of Appeals, which rejected the appeal on the grounds that the first instance decision was based on paragraph 1 of Article 54 (Limits of Representation by Defense Counsel) of the Criminal Procedure Code.

The Applicant before the Court challenged the aforementioned decisions of the Basic Court and the Court of Appeals, claiming, in essence, that they violated his right to free choice of the defense counsel, a right guaranteed by paragraph 5 of Article 30 [Rights of the Accused] of the Constitution, as well as that his right to a reasoned court decision, guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution.

In assessing the Applicant’s allegations, the Court (i) elaborated the general principles of the right to legal counsel of his choosing, according to the case-law of the European Court of Human Rights, including the principles and criteria developed by it, in order to proceed with(ii) with application of the latter to the circumstances of the present case.

The Judgment of the Court refers in particular to the principles and criteria established in the cases of the European Court of Human Rights Dvorski v. Croatia, Imbrioscia v. Switzerland and Salduz v. Turkey, according to which, among other things, it is emphasized that “the right of the accused to choose his lawyer is not an absolute right” and that the latter can be limited through the laws applicable to the extent that it is proportionate.

The Judgment, applying the principles and criteria established by the case-law of the ECtHR, namely that (i) the right to a defense counsel is not an absolute right; (ii) the limitation of this right, namely the limitation of the choice of defense counsel, is subject to the provisions applied in the relevant legal system, regarding who may be a defense counsel in the proceedings; and (iii) there must be relevant and sufficient reasons, which determine that such a limitation of this right is in fact in the interests of justice, inter alia, emphasizes that (i) the limitation of the choice of defense counsel for representation, in the circumstances of the present case, is provided for in paragraph 1 of Article 54 (Limits of Representation by Defense Counsel) of the Criminal Procedure Code, a limitation which refers to the fact that a defense counsel cannot represent two defendants in criminal proceedings; and (ii) that the limitation of this right is in the interests of justice.

Furthermore, and according to the clarifications given, the Judgment clarifies that (i) the Applicant was represented by the lawyer T.R. in an early stage of the criminal proceedings; (ii) the Applicant did not revoke the authorization of the lawyer T.R. at the initial hearing, but he chose another lawyer as a defense in continuation of the criminal proceedings; and (iii) the applicant had a representative/lawyer during the conduct of the procedure. In addition, the regular courts prevented the Applicant from chosing the lawyer A.Q. as a second defense counsel, referring to the limitations of Article (Limits of Representation by Defense Counsel) of the Criminal Procedure Code and that the restriction in question refers exclusively to the above-mentioned lawyer, while the Applicant has the right to choose another lawyer in the course of the criminal proceedings, as long as this does not constitute an action that is contrary to Article 54 (Limits of Representation by Defense Counsel) of the Criminal Procedure Code.

Therefore, and according to the clarifications given, the contested decisions of the regular courts for rejecting the representation of the applicant by the lawyer A.Q. as the second defense counsel in the criminal proceedings, in the present circumstances of this case, do not constitute a violation of paragraph 5 of Article 30 [Rights of the Accused] of the Constitution, in conjunction with paragraph 3 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

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/