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GJYKATA KUSHTETUESE
YCTABHH CYll
CONSTITUTIONAL COURT
Pristina, 12 March 2013
Ref. No.:RK 396/13
RESOLUTION ON INADMISSIBILITY
In
Case No. KI 20/13
Applicant
Rifat Osmani
Constitutional Review
of the Judgment ofthe Supreme Court of Kosovo PkJ. No. 10/2013 dated
22 January 2013
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KOSOVO
com posed of:
Enver Hasani, President
Ivan Cukalovic, Deputy-President
Robert Carolan, Judge
Altay Suroy, Judge
Almiro Rodrigues, Judge
Snezhana Botusharova, Judge
Kadri Kryeziu, Judge and
Arta Rama-Hajrizi, Judge,

The Applicant
1. The Referral is submitted (hereinafter: the Applicant),
represented by the Law Firm
Challenged de4~lSllon
2. challenges the Judgment of the Court PkL No.
2013, submitted to the Applicant on 20 February 2013.
Subject matter
3. The subject matter of the is constitutional the
Judgment No. 10/2013 22 January 2013.
4. The requests from Constitutional of the Republic of
the Court) to impose an interim measure, namely
from detention.
Legal basis
5. The Referral is on Articles
and 27 of the No. 03/L-121 on
Kosovo of January 2009 the Law), and 54, 55 and
Rules
of the Constitutional Court of the Republic of Kosovo
(hereinafter: Rules of Procedure).
Proceedings before
Constitutional Court
6. On 22 February Applicant Referral to
7· February President Judge Snezhana Botusharova as
Rapporteur Review composed of Judges Carolan
(presiding), Altay (member) and Cukalovic (member).
8. On February Applicant on
registration of
by
regular courts,
On
same date, the
under No.
9. 27 February 2013, representative the Applicant
Constitutional Court, requested Decisions on extension of on
issued by Court and Basic Court in Prishtina, including the
following Decisions of Supreme Court: Nr. 228/2010 (7 May Pn.
Nr. 737/2010 (28 2010); Pn. Nr. (29 December
475/2012 (26 Pn. Nr. August
(22 October
2

The
10.
ofthe case
On 24 May of Kosovo Criminal Charge to the
Prosecution in Prishtina due to the existence of a grounded
the of the in
in conjunction
11.
12.
13.
14.
15·
16.
On the same judge on the decision GJPP. No
dated 24 2009, detention on remand
duration of one (1) respectively until 22 June
On 13 August 2009, District Prosecution Office in filed the
Indictment PP. No. 465-6/2009 for the grounded suspicion that the Applicant
the offence of assistance aggravated
Article 147, paragraph 1, item 9 in conjunction with Article ofthe
Code
On 5 October the District Court of by its Decision KA. No.
348/09 the indictment PP. No 465-6/2009 the Applicant for
the criminal of in murder. In aforementioned
Decision, the Judge competent to the Indictment found
was filed accordance with the law, the
with which the Applicant was did contain elements of criminal
provided 147, 1, 9, conjunction with
of the old Criminal Code of Kosovo and concluded that [... ]"there are no
excluding criminal liability of defendants,
preventing their criminal prosecution."
to the documents submitted by Applicant, on the
obligation of court to a decision regarding the extension or
termination of detention on every two months, June 2009 until
February eighteen (18) decisions on of on by
the District Court of have issued. The decision, namely
Decision No. 383/09 on extension detention has been issued by Basic
Court Prishtina on February Six decisions of the District Court have
challenged by the Applicant in the Supreme Court. The Court
confirmed ofthese decisions.
Based on the documents submitted with Referral,
hearings
hearings have been held in the
Prishtina. Similarly, have a number of witness
experts, called to appear before Court. documentation
submitted Applicant references to the of this Court
for only the
Against Decisions of the panel District Court in Prishtina P. No.
383/2009 dated 12 2012, Decisions Supreme Pn. No.
854/2012 dated 22 October due to violations of criminal
procedure, representatives the Applicant protection
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legality with
challenged
accused,or
proposing to the
thereby terminating
alternative measure."
to [ ... ]"amend
remand of the
17· On 22 January 2013, Court of Kosovo with Judgment Pkl. No.
10/2013 rejected the protection of legality as ungrounded, stating
that the decisions by the request for the of legality were
no longer in force, for reason that based on the
instance
court, detention was OVT,Onrl until 17 December 2012
for the
protection oflegality was on 18 January
18. The Supreme Court noted that [.. .]"
to the
finding of this Court,
instance provided
on decisive facts on
ofdetention, and
properly when extending ofthe accused, according to Article 281,
paragraph 1, sub-paragraphs 1 and 2, item (i) ofthe CPCK,for the reason that
accused may flee or liability, due to the of the
criminal offence, and the sentence that may be on him if
found guilty, and therefore, his freedom may pose a risk of
obstructing his presence infurther criminal procedure".
and
19. same Judgment Pkl. No.
[...]"according to the findings
when extending
paragraph 1, sub-paragraphs 1
consideration of the of
manner ofcommission - he
father-in-law within
bloodedness ofthe accused, planning
Applicant's Allegation
in n"'~/)l"'rln
and item (iii) of
offence, and
carfor the other accused,
mosque, and therefore,
perpetration ofthe criminal offence,
circumstances ofcommitting such criminal offence, are facts pointing
that in case offinding himself in freedom, he may repeat the offence
a similar criminal offence".
20. In
the Applicant specifically last Judgment
Court Pkl. No. 10/2013 of 22 January regarding the rejection
for the protection oflegality,
it in each of its parts due to
and lack of arguments.
21.
further alleges that [...]
as public authorities,
Court and the Supreme
ignoring and delaying the
court procedure" violated his individual rights
Article 31 [Right to Fair and Trial] of the Constitution,
[Right to Liberty and Security] Article 6.1 [Right to a
European Convention for the 1J,.".+",,,.h Human Rights and
(hereinafter: the ECHR) Protocols.
22.
the Constitutional Court to F1D'-"'l'"1rn
Article 22
Instruments] and Article
4

[Right to
violated as a
detention on
23. Applicant further the Constitutional to detennine if
"constitutional right to fair impartial trial by Article
Constitution and Article ECHR and Protocols has been
a result offailure to respect abovementioned "
24. In addition to the requests by Applicant, a request for
measures has also In his interim measures, the
to release Applicant from on remand.
Assessment
the admissibility ofthe Referral
25. First of all, in order to be able to adjudicate the Referral, the
has to whether Applicant has met the requirements
admissibility, which are by Constitution further specified by
the Law and Rules
26. The Court should first examine whether the Applicant is an authorized party to
submit a with the Court, accordance with requirements of Article
113.7 of the Constitution.
Article 113, P"""'n"'"
7 of the Constitution provides:
"Individuals are authorized to violations by authorities of their
individual by the but only after
exhaustion remedies provided by law."
In relation to Referral, the Court notes that the Applicant is a natural
person, and is an authorized party in with [Jurisdiction
and Authorized of the
27· accordance 'with
requirements
(2) of the Law,
has exhausted
decision on the
Applicant's case is
10/2013 dated
22 January a result, the exhausted all
legal remedies available under the
28. The Applicant must also prove Article
49 of the Law in to submission time limit. It
can be seen from case file that of the Court Pkl. No.
10/2013 was Applicant on 20 Febmary 2013, while Applicant
filed the to Court on 22 2013, meaning the Referral
was submitted within four month limit, as prescribed Law and
Rules of vr£\,..",,,
5

29·
relation to the the also takes into account of the Rules
Procedure, which provides:
"(1) The Court may revietV rDTD,."" only if: c) The referral is not
il/- founded."
30.
the instant case, with proceedings in the courts, the
to the Indictment of 5 October and to the
issued by the 2009, including Decision
Basic Court of on the extension of detention on
In its Decisions on detention on remand, District
found that based on
under which
committed and the seriousness crime, there is legal basis for
on remand. This has been confirmed by
its Decisions, when
appeals of the
31.
32.
33.
34.
35.
The further notes that the
No. 10/2013 rejected the
confirming that the court
on the legal
detention
leaves it up to the courts to determine whether,
the case, the length
has exceeded a
words, courts have power to decide is
under specific circumstances mutatis mutandis Wemhoff v.
ofGermany, 7
A) at 23, 1968). In
justifications of the
and the courts for
to the seriousness of
the circumstances
cold blooded ness ofthe
therefore,
repeating
a similar
appear to be
to the complexity
make this Court to determine that the length
(see mutatis mutandis, Boddaert v. Belgium, App.
on 12 October
Moreover, to the conduct of and the first instance
court, is no such evidence that the on remand was unnece&

36. For all the aforementioned reasons, the Court is satisfied that the facts
presented by the Applicant did not in any way justify the allegation of a
violation of the constitutional rights and the Applicant did not provide evidence
that its rights and freedoms guaranteed by the Constitution have been violated
by the regular courts.
Request for Interim Measures
37. Article 27 of the Law and, in particular, Rule 54 (1) of the Rules of Procedure,
provide that "when a referral is pending before the Court and the merits of the
referral have not been adjudicated by the Court, a party may request interim
measures."
38. However, taking into account that the Referral was found inadmissible, the
Applicant is not entitled under Rule 54 (1) of the Rules of Procedure to request
interim measures.
39. Furthermore, the Court notes that the Applicant has not shown that if the
interim relief is not granted how his interests would suffer unrecoverable
damages. In fact, with regard to the Applicant's request for his release of
detention on remand, this Court cannot consider it to fall ,vithin its competence
to provide the Applicant ffith this protection.
FOR THESE REASONS
The Constitutional Court, pursuant to Article 113.7 of the Constitution, Article 20 and
27 of the Law, and Rules 36.2, 54, 55 and 56 of the Rules of Procedure, on 12 March
2013, unanimously:
DECIDES
I. TO REJECT the Referral as Inadmissible;
II.
TO REJECT the Request for interim measures;
III. This Decision shall be notified to the Parties and shall be published in the
Official Gazette, in accordance ffith Article 20-4 of the Law; and
IV. This Decision is effective immediately.
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