REPUBLIKA E KOSOVEs - PEnYI:i.JlHKA KOCOBO - REPUBLIC OF KOSOVO

GJYKATA KUSHTETUESEYCTABHH CY.l1.

CONSTITUTIONAL COURT

Prishtina, on 14 February 2019Ref. no.:RK 1235/19

RESOLUTION ON INADMISSIBILITY

III

Case No. KI06/18

Applicant

Shkumbin Mehmeti

Constitutional review of Decision [pzd. No. 94/2017] of the SupremeCourt of Kosovo of 13 November 2017

THE CONSTITUTIONALCOURT OF THE REPUBLIC OF KOSOVO

composed of:

Arta Rama-Hajrizi, PresidentBajram Ljatifi, Deputy PresidentBekim Sejdiu, JudgeSelvete Gerxhaliu-Krasniqi, JudgeGresa Caka-Nimani, JudgeSafet Hoxha, JudgeRadomir Laban, JudgeRemzije Istrefi-Peci, Judge, andNexhmi Rexhepi, Judge

Applicant

1. The Referral was submitted by Shkumbin Mehmeti from Podujeva(hereinafter: the Applicant), who is represented by lawyer Besian Syla.

Challenged decision

2. The Applicant challenges Decision [pzd. No. 94/2017] of the Supreme Court ofKosovo of 13November 2017.

Subject matter

3. The subject matter is the constitutional review of the challenged decision,which allegedly violated the rights guaranteed by Articles 22 [DirectApplicability of International Agreements and Instruments], 31 [Right to a Fairand Impartial Trial], 32 [Right to Legal Remedies], 33 [The Principle ofLegality and Proportionality in Criminal Cases] and 102 [General Principles ofthe Judicial System] of the Constitution of the Republic of Kosovo (hereinafter:the Constitution) and Articles 6 (Right to a fair trial) and 14 (Prohibition ofdiscrimination) of the European Convention on Human Rights (hereinafter:the ECHR)

Legal basis

4. The Referral is based on paragraphs 1 and 7 of Article 113 [Jurisdiction andAuthorized Parties] of the Constitution, Articles 22 [Processing Referrals] and47 [Individual Requests] of the Law No. 03/L-121 on Constitutional Court ofthe Republic of Kosovo (hereinafter: the Law) and Rule 32 [Filing of Referralsand Replies] of the Rules of Procedure of the Constitutional Court of theRepublic of Kosovo (hereinafter: the Rules of Procedure).

5. On 31 May 2018, the Constitutional Court of the Republic of Kosovo(hereinafter: the Court) adopted in the administrative session the amendmentsand supplementation to the Rules of Procedure, which was published in theOfficial Gazette of the Republic of Kosovo on 21 June 2018 and entered intoforce 15 (fifteen) days after its publication. Accordingly, in reviewing theReferral, the Court refers to the legal provisions of the new Rules of Procedurein force.

Proceedings before the Court

6. On 12January 2018, the Applicant submitted the Referral to the Court.

7. On 16 January 2018, the President of the Court appointed Judge SelveteGerxhaliu-Krasniqi as Judge Rapporteur and the Review Panel composed ofJudges: Almiro Rodrigues (Presiding), Ivan Cukalovic and Arta Rama- Hajrizi.

8. On 18 January 2018, the Court notified the Applicant about the registration ofthe Referral and sent a copy of the Referral to the Supreme Court of Kosovo.

9. On 16 June 2018, the mandate of judges: Snezhana Botusharova and AlmiroRodri$ues ended. On 26 June 2018, the mandate of judges: Altay Suroy andIvan Cukalovic ended.

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10. On 9 August 2018, the President of the Republic of Kosovo appointed newjudges: Bajram Ljatifi, Safet Hoxha, Radomir Laban, Remzije Istrefi-Peci andNexhmi Rexhepi.

11. On 6 September 2018, the Applicant notified the Court about the replacementoflawyer S. M., and instead of him authorized the lawyer Besian Syla, from themunicipality of Podujeva.

12. On 31 October 2018, the President of the Court appointed the new ReviewPanel composed of the following Judges: Arta Rama- Hajrizi (Presiding), BekimSejdiu and Nexhmi Rexhepi.

13. On 16 January 2019, the Review Panel considered the report of the JudgeRapporteur and made a recommendation to the Court on the inadmissibility ofthe Referral.

Summary of facts

14. The Applicant submits the Referral to the Court for the second time.

Facts regarding first Referral KI14S/11

15. On 10 November 2011, the Applicant submitted to the Constitutional Court theReferral KI14S/11 requesting constitutional review of: 1) Judgment P. No.2003/2006 of the District Court of 9 November 2007; 2) Judgment AP. no.190/2009 of the Supreme Court of 27 January 2010; 3) Judgment API. No.1/2010 of the Supreme Court of 26 November 2010, and 4) Judgment PKL-36/n of the Supreme Court of 10 August 2011. By these Judgments, theApplicant was convicted of a number of criminal offenses and was imposed anaggregate punishment for all charges with 30 (thirty) years of imprisonment.

16. Among other things, in Referral KI14S/11, the Applicant alleged that theregular courts had violated essential provisions of the criminal procedure, hecomplained that the trial was unfair and partial, that his right to effective legalremedies was violated. On 12 July 2012, the Constitutional Court by Resolutionon Inadmissibility rejected Referral KI14S/11 as manifestly ill-founded.

Facts regarding present Referral KIo6/18

17. On an unspecified date, the EULEX prosecutor submitted a request forextraordinary mitigation of the sentence to the Supreme Court of Kosovo witha proposal that the court against the Applicant "impose a sentence of not morethan twenty (20) years of imprisonment pursuant to Article 71 (2) of theCPCK, as well as the application of a law that is more favorable for theaccused," alleging that the regular courts with the interpretation of the legalprovisions: "... have directly violated Article 33.3 of the Constitution of theRepublic of Kosovo, which provides that the degree of punishment cannot bedisproportional to the criminal offense".

18. At the same time, the Applicant's defense counsel filed a request forextraordinary mitigation of the sentence with the Supreme Court of Kosovo

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with a proposal that the request be approved as grounded and the Applicant beimposed a more lenient sentence, reasoning that" ... that the convict has beenserving his sentence for 13 years and 30 days now and that he has beenrehabilitated completely and that, owing to that rehabilitation, he has begunto cooperate with the EULEX Prosecution, which is why has confessed topartaking in the commission of the criminal offence together with some otherpersons and gave the names of seven other partakers who were involved inthe commission of the criminal offences, whereby he has detailed the type ofweaponry that they have used, the crime scene, the positions that eachparticipant has taken and the actions that each of them has taken. (...J"

19. On 8 September 2017, the Basic Court in Prishtina by proposal Kp. No.921/2017 proposed to the Supreme Court of Kosovo to reject the request forextraordinary mitigation of the sentence as ungrounded.

20. On 21 September 2017, the State Prosecutor's Office by letter No. 120/2017proposed that the request for extraordinary mitigation of sentence be rejectedas ungrounded.

21. On 13 November 2017, the Supreme Court of Kosovo by Decision Pzd. No.94/2017 rejected as ungrounded the EULEX prosecutor's requests forextraordinary mitigation of sentence, as well as of the Applicant's defense,"imposed by Judgment P. No. 203/2005 of the District Court in Prishtina, of9.11.2007, modified by Judgment Ap. Kz. No. 190/2009 of the Supreme Courtof Kosovo of 27.01.2010, and Judgment Api. Kzi. No. 1/2010 of the SupremeCourt of Kosovo of 26.11.2010."

22. The Supreme Court of Kosovo by Decision Pzd. No. 94/2017 reasoned: "Theprovision of Article 429 of the CPCK stipulates that an extraordinarymitigation of a finally imposed punishment is permissible where, after thejudgment has become final, circumstances occur which did not exist when thejudgment was rendered or, although they existed, were unknown to the courtat that time, and such circumstances obviously would have led to a less severepunishment (...J. "

Applicant's allegations

23. The Applicant firstly alleges that "Decision Pzd. No. 94/2017, of 13.11.2017 iscontrary to Article 31 of the Constitution of the Republic of Kosovo, because afair and impartial trial is not guaranteed. "

24. The Applicant considers that in his request for extraordinary mitigation of thepunishment, he presented new evidence, in particular those provided by theEULEX Prosecutor's Officewith the number PPS No. 10-2013 and PPRKR No.30/2013.

25. In addition, the Applicant alleges that a number of legal provisions have beenviolated and that new evidence has been presented about the Applicant's rolein the commission of the criminal offense, the weapons which the Applicantpossessed, which were not known to the first instance court, and which,

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according to the Applicant, would result in the imposition of a lowerimprisonment sentence.

26. The Applicant further alleges that "without the application of the provisions ofthe Constitution, especially Article 31 and 33, a fair trial and rule of lawcannot be exercised, which contribute to the security that the right of noperson will be violated through arbitrary trials, irregular court procedures,which attempt to distort the presentation of new facts and evidence and theexisting ones that are in absolute compliance with the provisions of CPCRK,Article 429 and 431,paragraph I."

27. The Applicant considers that the Supreme Court did not sufficiently assess andreason the new evidence presented by the Applicant, which allegedly violatedArticle 31 of the Constitution, and resulted further in violation of Articles 2232, 33 and 102 of the Constitution as well as Articles 6 and 14 of the ECHR.

28. In addition, the Applicant claims: "If we had afair court process and it wouldbe complied with the provisions of Article 22, paragraph 1, 2, 3 and 5, Article31,paragraph 1, Article 32 and Article 33 of the Constitution of the Republicof Kosovo, the request for extraordinary mitigation of the sentence would beapproved since it met the legal conditions that are required by CPCRK,namely Article 429, 430 and 431, paragraph 6, because new evidence havebeen presented for which the Court of the first instance was not aware at thetime of adjudication, the request was submitted by the authorized personssuch as the Prosecutor and defense counsel, it was proposed to the SupremeCourt of Kosovo to modify the final Judgment regarding the Decision onpinishment" .

29. Finally, the Applicant requests the Court: "... to annul Decision Pzd. No.94/2017, of the Supreme Court of Kosovo, which was rendered by violatingthe constitutional provisions and also to modify Judgment P. No. 203/2005,regarding the Decision on punishment".

Admissibility of the Referral

30. The Court must first examine whether the Applicant has fulfilled theadmissibility requirements established in the Constitution and furtherspecified in the Law, and foreseen in the Rules of Procedure.

31. In this respect, the Court refers to paragraphs.1 and 7 of Article 113[Jurisdiction and Authorized Parties] of the Constitution which establish:

,,1. The Constitutional Court decides only on matters referred to the courtin a legal manner by authorized parties.

[ ...J

7. Individuals are authorized to refer violations by public authorities oftheir individual rights and freedoms guaranteed by the Constitution, butonly after exhaustion of all legal remedies provided by law".

[ ...J

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32. The Court also examines whether the Applicant has fulfilled the admissibilityrequirements as prescribed by the Law. In this regard, the Court refers toArticles 48 [Accuracy of the Referral] and 49 [Deadlines] of the Law, whichforesee:

Article 48[Accuracyof the Referral]

,In his/her referral, the claimant should accurately clarify what rightsandfreedoms he/she claims to have been violated and what concrete act ofpublic authority is subject to challenge".

Article 49[Deadlines]

"The referral should be submitted within a period of four (4) months. Thedeadline shall be counted from the day upon which the claimant has beenserved with a court decision".

33. Regarding the fulfillment of these requirements, the Court finds that theApplicant is an authorized party; he has exhausted all available legal remedies;he has specified the act of the public authority, which he challenges before theCourt and has submitted the Referral in time.

34. However, the Court also assesses whether the Applicant has fulfilled theadmissibility requirements foreseen by Rule 39 (3) (b) of the Rules ofProcedure, which stipulates:

(3) A referral may also be deemed inadmissible in any of the followingcases:

[ ... J(b) the Referral IS incompatible ratione materiae with theConstitution.

35. The Court first notes that the Applicant submits the Referral to the Court forthe second time and that the Judgments which found the Applicant guilty andsentenced him to 30 (thirty) years of imprisonment were reviewed by the Courtin Case KI145/11, therefore, the Court will not enter into the assessment ofthese Judgments.

36. In fact, in the present Referral KI06/18, the Applicant challenges theconstitutionality of Decision Pzd. No. 94/2017 of the Supreme Court of 13November 2017, alleging violation of his rights guaranteed by Articles 22, 31,32, 33 and 102 of the Constitution, as well as Articles 6 and 14of the ECHR.

37. The Court notes that the Applicant bases his allegations on erroneousassessment of the new evidence and erroneous interpretation of the legalnorms which, according to the Applicant, are contrary to Article 31 [Right toFair and Impartial Trial] of the Constitution and Article 6 (Right to a fair trial)

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of the ECHR. In addition, the Applicant alleges that other Articles 22, 32, 33and 102 of the Constitution, and Article 14 of the ECHR have been violated inconjunction with Article 31 of the Constitution and Article 6 of the ECHR.Furthermore, the Applicant argues that the violation of these articles is relatedto the violation of the right to fair and impartial trial.

38. From this standpoint, the Court will assess the Applicant's allegations only inrelation to the alleged violations of Article 31 of the Constitution, inconjunction with Article 6 of the ECHR.

39. Before considering the Referral, the Court recalls that in accordance withArticle 53 [Interpretation of Human Rights Provisions] of the Constitution"Human rights and fundamental freedoms guaranteed by this Constitutionshall be interpreted consistent with the court decisions of the European Courtof Human Rights".

Applicability of Article 6 of ECHR

40. Initially, the Court reiterates that, in accordance with ECtHR case law, Article 6of the ECHR applies throughout the entirety of proceedings for thedetermination of "any criminal charge", including the sentencing process (forinstance, property confiscation proceedings enabling the national courts toassess the amount at which a property is to be confiscated (see, Philips v.United Kingdom, ECtHR Judgment, No. 41087/98, 5 July 2001, paragraph39).

41. In addition, Article 6 of the ECHR applies to all cases where by extraordinaryremedies is allowed the review or reopening of criminal proceedings afterwhich the conduct of new proceedings is required (see ECtHR, case Vanyan v.Russia, application no. 53203/99, decision of 15 March 2006, paragraph 56,referring to cases Loffler v. Austria, application no. 30546/96, paragraphs 18-19, decision 3 October 2000 and Jose Maria Ruiz Mateos and Others v. Spain,Application No. 24469/94, decision of the Commission of 2 December 1994,Decisions and Reports 79, page 141).

Non.:.applicability of Article 6 ofECHR

42. The Court considers that Article 6 of ECHR is not applied in the proceedingsfor bringing the Applicant's sentence into conformity with the new criminal law(See, Nurmagomedov v. Russia, Judgment of ECtHR, No. 30138/02 of 7 June2007, paragraph 50).

43. Likewise, Article 6 of the ECHR is not applicable to the proceedings concerningthe execution of sentencing decisions, such as the procedure for the applicationof the pardon (Montcornet de Caumont v. France ECtHR Decision No59290/00 of 13 May 2003), pardonproceedings (Aldrian v. Austria,Commission Decision No 16266/90 of 7 May 1990, see also Macedo da Costav. Luxemburg, ECtHR Decision No 26619/07 of 5 June 2012).

44. In addition, Article 6 does not apply to proceedings for the reopening of a casebecause a person whose sentence has become final and who applies for his case

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to be reopened is not "charged with a criminal offence" within the meaning ofArticle 6 of the Convention (see ECtHR cases Franz Fischer v. Austria No.27569/02, Decision on Inadmissibility of 6 May 2003).

45. In addition, Article 6 of the ECHR does not apply even in cases where therequest for annulment of a decision by which an accused was found guilty isrejected upon extraordinary remedies, and because of his/her non-participationin the trial, he/she requests the restoring of the deadline to the previous state(see, ECtHR, case Zois Kokkonis v. Greece and Nikolitsa Chalilopoulou v.Greece, applications 76386/11 and 76408/11 of 23 November 2017, paragraph14)·

46. In addition, the Court also recalls that even in cases where an Applicantrequests the conviction of a third party, Article 6 of the ECHR is not applicableunder the ECtHR jurisprudence (see, case Perez v. France, Judgment(47287/99) of 12 February 2004, paragraphs 70-71; see also the ConstitutionalCourt, Case KI97/14, Applicant Velibor Jevtic, Resolution on Inadmissibility of8 December 2014, paragraphs 35-38).

Application of the abovementioned principles in the present case

47. In the present case, the Court notes that the Applicant's request forextraordinary mitigation of the sentence filed with the Supreme Court, in factconcerned the allegation that in his case new circumstances were created whichallowed the reopening of the proceedings, as regards the decision on thepunishment, namely they were mitigating circumstances which would have aneffect on the mitigation of the punishment.

48. In this regard, the Court notes that in the reasoning of the challenged Decision,the Supreme Court reasoned that "the provision of Article 429 of the CPCstipulates that an extraordinary mitigation of a finally imposed punishmentis permissible where, after the judgment has become final, circumstancesoccur which did not exist when the judgment was rendered or, although theyexisted, were unknown to the court at that time, and such circumstancesobviously would have led to a less severe punishment".

49. The Supreme Court further reasons: "Therefore, these circumstances cannotbe the basis for this extraordinary legal remedy because they do not have thenature of the circumstances under Article 429 of the CCRK which, accordingto the law, cannot be challenged and allowed by this legal remedy (...J".

50. As it can be noted from the abovementioned reasoning of the Supreme Court,the latter rejected the request for extraordinary mitigation of the sentence, as itreached the conclusion that the legal requirements that allow the reopening ofthe proceedings as regards the decision on punishment had not been met.

51. In this regard, the Court considers that the requirement for extraordinarymitigation of sentence also requires the fulfillment of the legal criteria for thereopening of the proceedings, namely of the final decisions in relation to thepunishment.

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52. In this context, the Court recalls that, in all cases where the review orreopening of proceedings completed by final decisions (civil, criminal,enforcement) was requested through extraordinary remedies, and the regularcourts dealt only with the admissibility criteria of the applications and not themerits of the case, in accordance with the ECtHR jurisprudence, the Court hasheld that Article 31 of the Constitution and Article 6 of the ECHR are notapplicable (See, cases of the Constitutional Court KII59/15, Sabri Ferati,Resolution on Inadmissibility of 13 June 2016, KI80/15, KI81/15 and KI82/15,Rrahim Hoxha, Resolution on Inadmissibility of 27 December 2016, andKI07/17, PashkMirashi, Resolution on Inadmissibility of 29 May 2017).

53. Therefore, the request for extraordinary mitigation of the sentence falls in thecategory of claims that are incompatible ratione materiae with theConstitution, because Article 31 of the Constitution, viewed in the light ofArticle 6 of the ECHR, is not applicable, as the requirements for allowing thereopening of the procedures regarding the decision on the punishment havenot been met.

54. In addition, the extraordinary legal remedies seeking the extraordinarymitigation of punishment do not normally involve the determination of "civilrights and obligations" or the grounds of "any criminal charge" and therefore,Article 6 is deemed inapplicable to them (see, inter alia, X v. Austria, 7761/77,Commission Decision of 8 May 1978, DR 14, P.171, Zawadzki v. Poland(Decision) No 34158/96 of 6 July 1999, Hurter v. Switzerland (decision), No.48111/07, May 15, 2012; Dybeku v. Albania (decision), No. 557/12, paragraph30 of 11March 2014).

55. In this regard, the Court emphasizes that the compatibility ratione materiae ofa referral with the Constitution derives from the Court's substantivejurisdiction. The right(s) relied on by the Applicant(s) must be protected by theConstitution, in order for a constitutional complaint to be compatible rationemateriae with the Constitution (See: the Constitutional Court, Case KI07/17,Applicant Pashk Mirashi, Resolution on Inadmissibility of 29 May 2017,paragraph 66).

56. In sum, the Court considers that the Applicant did not meet the admissibilityrequirements established by the Constitution and as further specified by theLaw and foreseen by the Rules of Procedure.

57. Therefore, the Court concludes that the Applicant's Referral is incompatibleratione materiae with the Constitution, and as such, it is inadmissible.

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FOR THESE REASONS

The Constitutional Court, in accordance with Article 113.7 of the Constitution,Article 20 of the Law and Rules 39 (3) (b) and 56 (2) of the Rules of Procedure, on16 January 2019, 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 withArticle 20-4 of the Law;

IV. This Decision is effective immediately.

Judge Rapporteur President of the Constitutional Court

Selvete Gerxhaliu- Krasniqi Arta Rama-Hajrizi

This translation is unofficial and serves for informational purposes only.

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