- The Constitutional Court
The Constitutional Court of the Republic of Kosovo has published the Judgment in Case KI 196/21, submitted by Gëzim Shtufi, whereby was requested the constitutional review of Judgment of the Supreme Court of the Republic of Kosovo [PML. No. 310/2021], of 14 September 2021.
The circumstances of the present case relate, inter alia, to court proceedings in a criminal case, in which the same judge had participated in the decision-making panel at two levels of jurisdiction. More specifically, it appears from the case file that against the Applicant, the Basic Prosecution in Prizren filed the indictment for the commission of the criminal offense of “extortion” and of “unauthorized ownership, control or possession of weapons”. The Basic Court acquitted the Applicant of the first indictment, while finding him guilty of the second, sentencing the Applicant to a fine. Following the appeal of the Basic Prosecution, the Court of Appeals remanded the case for retrial to the Basic Court, regarding the acquittal of the criminal offense of “extortion”. The presiding judge of the review panel in this decision making was Judge M.M. Deciding on retrial, the Basic Court again rejected the charge against the Applicant for the criminal offense of “extortion”, referring to the principle of res judicata. The Court of Appeals, acting upon the appeal of the Basic Prosecution, for the second time remanded the case for retrial to the Basic Court, ordering that in the retrial this criminal case be given to another trial panel, as the trial panel which has adjudicated in the first instance did not comply with the remarks and instructions of the Court of Appeals. The presiding judge of the review panel in this decision-making was again Judge M.M. The Basic Court again rejected the indictment against the Applicant, invoking the principle of res judicata and ne bis in idem. The Judgment of the Basic Court was appealed by the Basic Prosecution to the Court of Appeals, which remanded the case for retrial to the Basic Court for the third time, in which case the latter found the Applicant guilty of the criminal offense of “extortion” and sentenced him to suspended sentence for a term of 1 (one) year. The Basic Prosecution again filed an appeal against the Judgment of the Basic Court, but this time only regarding the length of the sentence imposed. The Court of Appeals modified the Judgment of the Basic Court, increasing the sentence from one year of suspended sentence to 3 (three) years of effective imprisonment. The Applicant filed a request for protection of legality against the Judgment of the Court of Appeals with the Supreme Court, in which case the latter rejected the request for protection of legality and upheld the judgments of the lower instances, upholding the sentence imposed to effective imprisonment for a term of 3 (three) years. In this decision-making part of the Review Panel was judge M.M.
The Applicant before the Constitutional Court alleged a violation of the principle of (i) “the impartiality of the court”, as a result of the participation of Judge M.M. at two different levels of jurisdiction for the criminal case against him, specifically that of the Court of Appeals and that of the Supreme Court; and (ii) the “right to a reasoned decision”, as an integral part of the right to a fair and impartial trial, guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution and Article 6 (Right to a fair trial) of the European Convention on Human Rights.
In assessing the Applicant’s allegations, the Court first elaborated on the general principles of its case law and of the European Court of Human Rights, regarding the “impartiality of the court”, and then applied the latter to the circumstances of the present case. The Court reiterated, inter alia, that the impartiality of a court based on its consolidated case law and of the European Court of Human Rights should be determined according to (i) the subjective test, which relates to a judge’s personal conviction and conduct, assessing whether a judge may have had personal prejudices or bias in a particular case; and (ii) the objective test or whether the court itself, inter alia, its composition, has provided sufficient guarantees to rule out any legitimate doubt in this regard.
In this respect, the Court, applying the abovementioned criteria, found that the trial panel of the Supreme Court was impartial in terms of the subjective test, however it was not impartial in terms of the objective test, for the fact that, Judge M.M. had participated in two different levels of jurisdiction for the criminal case, twice as presiding judge of the Panel in the Court of Appeals and most recently as a member of the Panel in the Supreme Court. In this context, the Court, beyond the criteria set out in Article 31 of the Constitution and Article 6 of the European Convention on Human Rights, also recalled the content of paragraph 2 of Article 39 of the Criminal Procedure Code, which specifically stipulates that a judge should be excluded from the decision-making in case if he or she has participated in previous proceedings in the same criminal case, which did not happen in the circumstances of the present case.
Therefore and based on the explanations given in the published Judgment, the Court found that, the challenged Judgment [Pml. no. 310/2021] of 14 September 2021 of the Supreme Court, was rendered contrary to the procedural guarantees set out in Article 31 of the Constitution in conjunction with Article 6 of the European Convention on Human Rights, remanding the latter to the Supreme Court for retrial.
This press release was prepared by the Secretariat of the Court for informational purposes only. The full text of the decision has been served to the parties involved in the case, is published on the Court’s website and will be published on the Official Gazette within set deadlines.
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