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) .

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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