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REPUBLIKA E KOSOVEs - PEnYBJIHKA KOCOBO - REPUBLIC OF KOSOVO
GJYKATA KUSHTETUESE YCTABHH CYJJ:
CONSrnnnnONALCOURT
Prishtina, 18 February 2020 Ref. no.:RKtS19/2o
This translation is unofficial and serves for informational
purposes only.
RESOLUTION ON INADMISSIBILITY
in
Case No. K0197/19
Applicant
Judges of the Serious Crimes Department,
the Basic Court in Prishtina
Constitutional review
ofArticle 42, paragraph 4 of Law No. o6/L-oS4 on Courts
composed of:
Arta Rama-Hajrizi, President Bajram Ljatifi, Deputy President
Bekim Sejdiu, Judge Selvete Gerxhaliu-Krasniqi, Judge Gresa
Caka-Nimani, Judge Safet Hoxha, Judge Radomir Laban, Judge Remzije
Istrefi-Peci, Judge, and Nexhmi Rexhepi, Judge
Applicant
1. The Referral was submitted by the judges of the Basic Court
in Prishtina, the Serious Crimes Department, signed by Suzana
Qerkini, Shpresa Hasaj Hyseni, Isuf Makolli, Shasivar Hoti, Violeta
Namani, Naser Foniqi, Nushe Kukaj Meka, Beqir Kalludra, Vesel
Ismajli, Lutfi Shala, Nairne Jashanica (hereinafter: the
Applicants) .
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Challenged decision
2. The subject matter is the Applicants' request for
constitutional review of Article 42, paragraph 4 of Law No.
06jL-054 on Courts (hereinafter: Law on Courts), which a11egedly
violates Article 31 [Right to Fair and Impartial Trial] of the
Constitution of the Republic of Kosovo (hereinafter: the
Constitution), in conjunction with Article 6 of the European
Convention on Human Rights (hereinafter: the ECHR).
Legal basis
3. The Referral is based on Article 113.8 of the Constitution,
Articles 51, 52 and 53 of the Law No. 03jL-121 on the
Constitutional Court of the Republic of Kosovo, (hereinafter: the
Law) and Rule 77 of the Rules of Procedure of the Constitutional
Court of the Republic of Kosovo (hereinafter: the Rules of
Procedure).
Proceedings before the Court
4. On 4 November 2019, the Applicants submitted the Referral to
the Constitutional Court of the Republic of Kosovo (hereinafter:
the Court).
5. On 7 November 2019, the President of the Court appointed
Judge Safet Hoxha as Judge Rapporteur and the Review Panel composed
of Judges: Bekim Sejdiu (Presiding), Selvete Gerxhaliu -Krasniqi
and Gresa Caka-Nimani (members).
6. On 15 November 2019, the Court notified: the Applicants, the
President of the Republic of Kosovo, the President of the Assembly
of the Republic of Kosovo, the Prime Minister of the Republic of
Kosovo, the Ombudsperson, the Secretary General of the Assembly of
the Republic of Kosovo and the Judicial Council of the Republic of
Kosovo about the registration of the Referral.
7. On 22 January 2020, the Review Panel considered the report of
the Judge Rapporteur and unanimously recommended to the Court the
inadmissibility of the Referral.
Summary offacts
8. On 23 November 2018, the Assembly of Kosovo adopted the Law
on Courts, which was published in the Official Gazette on 18
December 2018.
9. In accordance with Article 18 of the Law on Courts, the
Special Department within the Basic Court in Prishtina is
established to review the cases falling under the competence of the
Special Prosecution of the Republic of Kosovo ..
10. In accordance with Article 42, paragraph 4 of the Law on
Courts: "With the entry into force of this Law, cases of the
Special Prosecution Office of the Republic ofKosovo for which the
initial hearing has not been held yet shall be transferred for
review to the Special Department for cases under jurisdiction of
the Special Prosecution Office of the Republic of Kosovo. Cases for
which
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the initial hearing has been held will continue to be examined
in the relevant courts until their completion".
11. On 23 April 2019, in accordance with the Law on Courts, the
Judicial Council of the Republic of Kosovo (hereinafter: KJC)
adopted the Regulation (No. 03/2019) on the Organization and
Functioning of the Special Department within the Basic Court in
Prishtina and the Court of Appeals.
Applicant s' allegations
12. The Applicants allege that Article 42, paragraph 4 of the
Law on Courts is incompatible with Article 31 [Right to Fair and
Impartial Trial] of the Constitution, in conjunction with Article 6
of the ECHR.
13. The essence of the Applicants' Referral consists of the
allegation that Article 42, paragraph 4 of the Law on Courts,
stipulating that cases falling ,,,,ithin the jurisdiction of the
Special Department but for which an initial hearing has been held
will continue to be processed in the respective courts, namely
within the Serious Crimes Department, violates Article 31 of the
Constitution in conjunction with Article 6 of the ECHR.
14. The Applicants build their arguments regarding the
constitutionality of the Law on Courts based on the principle of
adjudication within a reasonable time limit in criminal matters
stating that the adjudication of cases referred by the Special
Prosecution Office of the Republic of Kosovo (hereinafter: SPRK)
from the Serious Crimes Department and not from the Special
Department would make it difficult to adjudicate these criminal
cases within a reasonable time. In this regard, the Applicants
mention several cases, emphasizing that(( [. ..J it is case
(Medikus', which is being adjudicated for more than 10 years, and
the trial is still ongoing, then the cases ((Toka 1 and 2", ((Syri
i Popullit", ((Veteranet", ((Vizat" as well as many other cases
ofthis nature."
15. In the context of this allegation, the Applicants refer to
the case of the European Court of Human Rights (hereinafter: the
ECtHR).) H v. France, application no. 10073/82, Judgment of 24
October 1989. The Applicants further clarify that they receive
complaints from the parties to the proceedings due to the delay of
the proceedings on the grounds that in the Serious Crimes
Department part of which are the Applicants, at the same time cases
falling within their subject matter jurisdiction are adjudicated,
including cases falling within the jurisdiction of the Special
Department under the provisions of the Law on Courts.
16. The Applicants also emphasize that ((The Special Department
has been established to deal with cases that fall within the
competence of the SPRK, which are cases involving criminal offenses
of a particularly serious nature, and in view of the nature of
these cases a special procedure of selection of judges has been
developed, which process is structured on certain conditions, which
everyone who claimed to be selected as a judge within this
department had to meet, so judges who were selected were considered
to be the only ones who could adjudicate cases ofthis nature". In
this regard, the Applicants allege that in this case the principle
of fair trial is violated, because (([. ..J the accused
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are tried by an incompetent judicial level, not prepared in
sufficient professional level with respect to the cases of this
nature, then violation of the principle offair trial also relates
to a violation of the principle of equality of arms, as persons who
have committed offenses of the same nature are adjudicated by
different Departments, and in this function by judges who are
assumed to have different levels of professional background, namely
stand above the criteria that were applied when selecting
them".
17. The Applicants further specify that the continuation of the
adjudication of cases falling within the competence of the Special
Department by the Serious Crimes Department constitutes a violation
"of equal treatment of the parties". In this context, the
Applicants refer to the ECHR case Mullai and others v. Albania
[application no. 9074/07, Judgment of 23 June 2010, paragraph 86],
in which case the ECtHR held, inter alia, that "[. ..] the
existence of multiple parallel and interrelated proceedings raising
substantially the same legal issue cannot be considered to be in
compliance with the rule of law".
18. The Applicants also allege that Article 42, paragraph 4 of
the Law on Courts is in violation of Article 18 [Special Department
for cases under the jurisdiction of the Special Prosecution of the
Republic of Kosovo] and Article 19 [The Serious Crimes Department
of the Basic Court], as well as Article 42, paragraphs 3 and 5 of
the Law on Courts itself, which provisions refer to the subject
matter jurisdiction of the Special Department within the Basic
Court in Prishtina to review cases falling within the competence of
the SPRK.
19. The Applicants further allege that Article 42, paragraph 4
of the challenged Law "constitutes a substantial violation of the
provisions of the criminal procedure" pursuant to Article 384
[Substantial Violation of the Provisions of Criminal Procedure],
paragraph 1, item 6 of the Criminal Procedure Code of the Republic
of Kosovo for the reason that "the judgment was rendered by a court
which lacked subject matter jurisdiction to hear the case". In this
context, the Applicants state that "[. ..] the subject matter
jurisdiction has never before been distributed into two instances,
and adjudicated by two different court instances".
20. Finally, the Applicants referring to "Article 31 of the
Constitution of the Republic of Kosovo, Article 6 of the European
Convention on Human Rights, Articles 18 and 22 of the CPCRK,
Articles 18 and 19 of the Law on Courts [request] the
Constitutional Court:
1. To approve the Referral of the Basic Court in
Prishtina-Serious Crimes Department; 2. To repeal Article 41 [42]
paragraph 4 of the Law on Court[s] in the first paragraph as
incompatible with Article[s] 31 of the Constitution of the Republic
ofKosovo".
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Relevant provisions of the Law on Courts
Law No. 06/L - 054 on Courts
Article 3 Exercise ofJudicial Power
1. Judicial power in the Republic of Kosovo shall be exercised
by the courts established by this Law.. [' ..J
Article 18
Special Departmentfor cases under the jurisdiction ofthe
Special Prosecution ofthe Republic ofKosovo
1. The Special Department within the Basic Court of Prishtina
has the competence to review cases falling under the competence of
SPRK in accordance with the Law on Special Prosecution of the
Republic ofKosovo, amended and supplemented by subsequent laws. 2.
All matters in the Special Departmentfor cases under the
jurisdiction of SPRK shall be adjudicated by the panel of three (3)
professional judges, one ofwhom shall be the presiding judge.
Article 19 The Serious Crimes Department ofthe Basic Court
1. The Serious Crimes Department of the Basic Court shall
adjudicate criminal offenses punishable by more than ten (10)
years, and criminal offences qualified as serious criminal offenses
under the Criminal Code or Criminal Procedure Code ofKosovo. 2. All
cases before the Serious Crimes Department of the Basic Court shall
be adjudicated by a trial panel of three (3) professional judges,
with one (1) of them being the presiding judge.
[. ..J Article 42
Appointment ofJudges in Special Departmentfor cases under the
Jurisdiction ofSpecial Prosecution Office ofthe Republic of
Kosovo and Completion ofPending Cases
1. Kosovo Judicial Council shall, at the latest six (6) months
from entry into force of this Law, elect judges who shall serve in
the Special Department for cases under the jurisdiction of the
Special Prosecution Office of the Republic ofKosovo, respectively
in the Department for cases under jurisdiction ofSPRK, within the
Basic Court ofPrish tin a and Court ofAppeals, in accordance with
provisions ofthe applicable law. 2. Kosovo Judicial Council shall,
also undertake all measures to junctionalize Special Department
within the Basic Court of Prishtina and the Court of Appeals,
including recruitment of supporting staff and professional
collaborators
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3. Judges assigned to work in the Special Department of the
Basic Court of Prishtina and in the Department for cases under the
jurisdiction of the Special Prosecution of the Republic of Kosovo,
at the Court of Appeals, may be engaged in trial panels for the
adjudication of cases within the Departmentfor Serious Crimes at
the basic Court ofPrishtina respectively at the Court ofAppeals. 4.
With the entry into force of this Law, cases of the Special
Prosecution Office of the Republic ofKosovo for which the initial
hearing has not been held yet shall be transferred for review to
the Special Department for cases under jurisdiction of the Special
Prosecution Office of the Republic of Kosovo. Cases for which the
initial hearing has been held will continue to be examined in the
relevant courts until their completion. 5. With the entry into
force of this Law, cases of the Special Prosecution Office of the
Republic of Kosovo that are at the Court of Appeal shall continue
to be reviewed by the respective panel which has the case under
review at the moment of entry into force of this Law. Cases of the
Special Prosecution Office of the Republic of Kosovo, which are
admitted to the Court ofAppeal after the entry into force of this
Law, shall be reviewed by the Department for cases under the
jurisdiction of the Special Prosecution Office of the Republic
ofKosovo.
Admissibility ofthe Referral
21. With regard to the admissibility of the Referral, the Court
first examines whether the Referral has fulfilled the admissibility
requirements established in the Constitution, and further specified
in the Law and the Rules of Procedure.
22. In this respect, the Court refers to paragraphs 1 and 8 of
Article 113 [Jurisdiction and Authorized Parties] of the
Constitution which establish:
1. "The Constitutional Court decides only on matters referred to
the court in a legal manner by authorized parties.
(...J
8. The courts have the right to refer questions of
constitutional compatibility of a law to the Constitutional Court
when it is raised in a judicial proceeding and the referring court
is uncertain as to the compatibility of the contested law with the
Constitution and provided that the referring court's decision on
that case depends on the compatibility of the law at issue."
23. The Court refers to Articles 51, 52 and 53 of the Law, which
stipulate:
Article 51
Accuracy ofreferral
1. A referral pursuant to Article 113, Paragraph 8 of the
Constitution shall be filed by a court only if the contested law is
to be directly applied by the court with regard to the pending case
and if the lawfulness of the
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contested law is a precondition for the decision regarding the
case pending with the court.
2. A referral shall specify which provisions of the law are
considered incompatible with the Constitution.
Article 52
Procedure before a court
After the submission of a referral pursuant to Article 113,
Paragraph 8 of the Constitution, the procedure before the referring
court shall be suspended until a decision of the Constitutional
Court is rendered.
Article 53
Decision
The Constitutional Court shall decide only about the compliance
of the legal provision with the Constitution and shall not decide
on other factual or legal matters related to the dispute before the
referring court.
24. The Court also takes into account Rule 77 of the Rules of
Procedure, which specifies:
Rule 77[Referral pursuant to Article 113.8 ofthe Constitution
and Articles 51, 52 and 53 ofthe Law]
(1) A referral filed under this Rule must fulfill the criteria
established under Article 113.8 of the Constitution and Articles
51, 52 and 53 of the Law.
(2) Any Court of the Republic of Kosovo may submit a referral
under this Rule provided that:
(a) the contested law is to be directly applied by the court
with regard to the pending case; and
(b) the lawfulness of the contested law is a precondition for
the decision regarding the case pending with the court.
(3) The referral under this Rule must specify which provisions
of the contested law are considered incompatible with the
Constitution. The case file under consideration by the court shall
be attached to the referral.
(4) The referring court may file the referral ex officio or upon
the request of one of the parties to the case and regardless of
whether a party in the case has disputed the constitutionality of
the respective legal provision.
(5) After the filing of the referral, the Court shall order the
referring court to suspend the procedure related to the case in
question until a decision of the Constitutional Court is
rendered.
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25. The Court first notes that the Applicants in the "Subject"
of the Referral to the Court specify Article 41, paragraph 4 of the
Law on Courts, as a provision that they challenge before the Court.
However, the Court notes that throughout the content of their
Referral, the Applicants refer to Article 42, paragraph 4 of the
challenged Law as a provision, the constitutionality of which they
challenge before the Court. Accordingly, the Court considers that
the Applicants challenge Article 42, paragraph 4 of the Law on
Courts.
26. In the light of the abovementioned normative framework, it
results that any referral submitted under Article 113, paragraph 8
of the Constitution, in order to be admissible, must meet the
following criteria, which are closely interlinked with each other,
and which must be cumulatively met:
a) the referral must be filed by a "court";
b) the challenged law must be directly applied by the referring
court in the
case before it;
c) the constitutionality of the challenged law is a prerequisite
for deciding in
the case under consideration;
d) the (referring) court must not be certain of the compliance
of the
challenged law with the Constitution;
e) The referring court must specify what provisions of the
challenged law
are considered incompatible with the Constitution.
27. Therefore, the Court will, initially, examine whether the
Applicants are an authorized party to file such a Referral, namely,
whether the Referral was submitted by a "court" as established in
paragraph 8 of Article 113 of the Constitution, the Law and the
Rules of Procedure.
28. In this regard, the Court refers to its case law where the
abovementioned criteria have been applied as regards the
admissibility of the Referral in accordance with paragraph 8 of
Article 113 of the Constitution (see cases of the Constitutional
Court, K059/14, Applicant Hilmi Hoxha, Resolution on
Inadmissibility of 26 June 2014; KOI26/16, Applicants: Specialized
Panel of the Special Chamber of the Supreme Court on the
Privatization Agency of Kosovo Related Matters, Resolution on
Inadmissibility of 27 March 2017, paragraph 62; KOI42/16,
Applicants: Appellate Panel of the Special Chamber of the Supreme
Court on the Privatization Agency ofKosovo Related Matters Judgment
of 9 May 2017, paragraph 58, and case KOI57/18, Applicant The
Supreme Court of the Republic of Kosovo, Judgment of 13 March 2019,
paragraph 45).
29. The Court recalls that in case KOI57/18, mentioned above, in
which case the referral was submitted by the Supreme Court and was
signed by its President within the scope of authorizations relating
to his function. The Referral clearly stated that it is submitted
by the Supreme Court which had to decide on the revision of an
insurance company against a Judgment of the Court of Appeals and
the decision on the revision was directly linked with the
constitutionality of the legal norm that should have been applied
in the case before it. Consequently, the Constitutional Court
considered that the Referral was submitted by the "court" which has
the case under its consideration within the
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meaning of paragraph 8 of Article 113 of the Constitution (see
case K0157/ 18 above, paragraph 48).
30. The Court recalls that in case KOI26/16, mentioned above,
had found that a "court" is also each judge or panel of judges
having full competence to adjudicate the merits of a case pending
before it. In the abovementioned case, the judge who referred the
case to the Constitutional Court tried the case through a single
judge as the judge competent to decide the case on which he had
referred the case to the Constitutional Court. Consequently, the
Court held that pursuant to Article 113, paragraph 8, of the
Constitution, the Referral in question was submitted by the "court"
having the case under review within the meaning of Article 113,
paragraph 8 of the Constitution (see case K0126/16 above,
paragraphs 59 and 60).
31. The Court notes that the Applicants' case differs from the
abovementioned cases. The Court recalls that in the present case,
the Referral was neither filed by a judicial panel having the case
under consideration nor by the President of the Basic Court within
the scope of his authorizations related to his/her function, but
was filed and signed by eleven (11) judges of the Basic Court in
Prishtina, namely, the judges of the Serious Crimes Department, who
challenge in abstract the compliance of paragraph 4 of Article 42
of the Law on Courts with Article 31 [Right to Fair and Impartial
Trial] of Constitution, in conjunction with Article 6 of the
ECHR.
32. Furthermore, the Court notes that the Applicants have not
specified whether any trial panel of the Serious Crimes Department,
within the Basic Court in Prishtina, has a "case under
consideration" before it and that under the general provisions of
the Law on Courts, will have to be dealt with by the Special
Department, and if so, what is the case. The Applicants mention
several cases such as, "case 'Medikus', which is being adjudicated
for more than 10 years, and the trial is still ongoing, then the
cases "Taka 1 and 2", "Syri i Popullit", 'Veteranet", "Vizat" as
well as many other cases of this nature" but without specifying the
specific circumstances of these cases, if these cases by their
nature should have to be dealt with by the Special Department and
currently are handled by the Serious Crimes Department, which would
prove before the Court that the referral was filed by a "court"
that has the case under its consideration, as well as proving that
other criteria for the admissibility of the referral have been met
in the present case.
33. Therefore, the Court considers that the Referral submitted
by the Applicants, in their capacity of Judges of the Serious
Crimes Department of the Basic Court, cannot be regarded as a
Referral filed by a "court", as defined in the legislation
mentioned above, precisely, in Article 113, paragraph 8 of the
Constitution, the Law and the Rules of Procedure and as further
specified in the case law of this Court.
34. In addition, the Court, referring to the other
inadmissibility criteria established in Article 113, paragraph 8 of
the Constitution, considers that the Applicants have also failed to
prove whether the challenged law should be directly applied by the
referring court in the cases under consideration before it, and
whether
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the constitutionality of the challenged law is a prerequisite
for rendering a decision in the case under consideration.
35. In addition, the Court, despite the abovementioned
conclusions, also notes that the Applicants' main allegation is
that Article 42, paragraph 4 of the Law on Courts infringes Article
31 of the Constitution, specifically the principle of a trial
within a reasonable time, as an integral part of the right to a
fair trial. In this regard, without prejudice to the
constitutionality of these legal provisions, the Court refers to
the main principles established in its case-law and that of the
ECtHR pertaining to the trial within a reasonable time, according
to which the claims related to a trial within a reasonable time is
assessed in the light of the circumstances of the specific cases,
and not abstractly, in particular taking into account: (a) the
complexity ofthe case, (b) the conduct of the parties to the
proceedings, (c) the conduct of the competent court or other
relevant authorities, and (d) the importance of what is at stake
for the Applicant in the litigation (see cases of Constitutional
Court KI23/16, Applicant: Qazim Bytyqi and others, Resolution on
Inadmissibility of 5 May 2017, paragraph 58 and KI18/18, Applicant:
IsufMusliu, Resolution on Inadmissibility of 30 May 2018, paragraph
43; see also ECtHR Judgment of 7 February 2002, Mikulic v. Croatia,
no. 53176/99, paragraph 38).
36. In conclusion, the Court finds that the Applicants are not
authorized parties to file the Referral with the Court and,
therefore, the Referral is inadmissible.
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FOR THESE REASONS
The Constitutional Court, in accordance with Article 113.8 of
the Constitution, Articles 20 and 51 of the Law and Rules 59 (b)
and 77 (2) of the Rules of Procedure, on 22 January 2020,
unanimously
DECIDES
I. TO DECLARE the Referral inadmissible;
II. TO NOTIFY this Decision to the Parties;
III. TO PUBLISH this Decision in the Official Gazette in
accordance with Article 20.4 of the Law;
IV. This Decision is effective immediately.
Judge Rapporteur President of the Constitutional Court
a Rama-Hajrizi Safet Hoxha
This translation is unofficial and serves for informational
purposes only.
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