RESOLUTION ON INADMISSIBILIlY

Transcription

1 KII'UUlI~\.1;: KOSO\ ts - I'I:.HYli..lIHKA I~OCOUO - HI.I'UK[,IC 01 KQS()\O GJYKATA KUSHTETUESE YCTABHI1 CYll CONSTITUTIONAL COU In Prishtina, on 31 October 20J6 Ref. No.:RK993/ 16 RESOLUTION ON INADMISSIBILIlY in Case No. K1160/15 Applicant Nehat Kelaj Constitutional review of Notification PLKK 94/15 ofthe Conditional Release Panel, ofthe Judicial Council ofkosovo, of 10 December 2015 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KOSOVO composed of Acta Rama-Hajrizi, President Ivan Cukalovic, Deputy-President Altay Suroy, Judge Almiro Rodrigues, Judge Snezhana Botusharova, Judge BelGm Sejdiu, Judge Selvete Gerxhaliu-Krasniqi, Judge, and Gresa Caka-Nimani, Judge Applicant 1. The Referral was submitted by Mr. Nehat Kelaj from Prizren, currently serving the imprisonment sentence in the Correctional Centre in Dubrava (hereinafter, the Applicant). 1

2 Challenged decision 2. The Applicant challenges Notification PLKK. 94/15 of the Conditional Release Panel of the Judicial Council of Kosovo (hereinafter: Conditional Release Panel) of 10 December 2015, as well as Notification No. 507 of the Correctional Center in Dubrava of 24 December 2015, by which the Applicant was informed that his request for conditional release was premature. Subject matter 3. The subject matter is the constitutional review of the challenged decision which allegedly violated the Applicant's rights guaranteed by the Constitution of the Republic of Kosovo (hereinafter: the Constitution). The Applicant does not specifically mention what articles of the Constitution were violated. Legal basis 4. The Referral is based on Article of the Constitution, Article 47 of the Law No. 03/L-121 on Constitutional Court of the Republic of Kosovo (hereinafter: the Law) and Rule 29 of the Rules of Procedure of the Constitutional Court of the Republic of Kosovo (hereinafter: the Rules of Procedure). Proceedings before the Constitutional Court 5. On 30 December 2015, the Applicant submitted the Referral to the Constitutional Court of the Republic of Kosovo (hereinafter: the Court). 6. On 22 January 2016, the President of the Court appointed Judge Almiro Rodrigues as Judge Rapporteur and the Review Panel composed of Judges Robert Carolan (Presiding), Ivan Cukalovic and Arta Rama-Hajrizi. 7. On 1 March 2016, the Court notified the Applicant about the registration of the Referral and sent a copy of it to the Conditional Release Panel. 8. On 13 September 2016, the President of the Court appointed Judge Snezhana Botusharova as a member of the Review Panel, replacing Judge Robert Carolan. 9. On 15 September 2016, after having considered the report of the Judge Rapporteur, the Review Panel recommended to the full Court the inadmissibility of the Referral. Summary offacts 10. The Applicant is serving an imprisonment sentence in the Dubrava Correctional Centre 11. On 11 November 2015, the Applicant started an initiative with the Conditional Release Panel for approval of his conditional release. 2

3 12. On 10 December 2015, the Conditional Release Panel (Notification PLKK. 94/15) replied to the Applicant that his request was not reviewed, because it was premature. 13. The Conditional Release Panel stated that "The Correctional Center in Dubrava has not submitted your pet sonal file for review yet because pursuant to the law, the pt"ofessional team of the Correctional Center is competent for contt"olling the legality of the legal qualificationfot filing requests and cases to be handled by the Conditional Release Panel." 14. On 16 December 2015, the Applicant requested the Dubrava Correctional Center to explain the reasons why his initiative for the conditional release was not forwarded to the Conditional Release Panel. 15. On 24 December 2015, the Correctional Center in Dubrava responded (Notification no. 507) to the Applicant that under CCK the request for conditional release is reviewed after serving 2/ 3 of the total sentence which means that his request will not be considered before 11 November Relevant legal provisions law ON EXECUTION OF PENAL SANCTIONS Law No. 04/L-149 of 29 July 2013 Article 122 Conditional Release Panel 5. TheT'e is no right on appeal against parole panel ruling and also cannot be raised an administrative conflict. Applicant's allegations 16. The Applicant claims that the challenged decision, his: ''fundamental constitutional right has been violated contrary to Article 3 ofthe Criminal Code ofkosovo and Article 250 ofthe LEPS". 17. The Applicant also alleges that he won "the right to -\12 conditional release, (... J when the new Criminal Code entered into fot'ce, Article 3 [Application of the most favorable law], items 1 and 2, as T'ead in conjunction with the Law on Execution ofpenal Sanctions, Article 250". 18. The Applicant requests the Court "to interpret AT ticle 3 ofthe Criminal Code of Kosovo (...J". 3

4 Admissibility ofthe Referral 19. The Court examines whether the Applicant's Referral meets the requirements of admissibility, established by the Constitution and as further specified in the Law and the Rules of Procedure. 20. The Court refers to Article 113 [Jurisdiction and Authorized Parties] of the Constitution which establishes: "1. The Constitutional Court decides only on matters, eferred to the court in a legal manner by auth01-ized pm ties. 7. Individuals are authorized to refel violations by public authorities of their individual rights and freedoms guaranteed by the Constitution, but only after exhausting all legal remedies provided by law." 21. The Court also refers to Article 48 [Accuracy of the Referral] of the Law, which provides: "In his/her referral, the claimant should accurately clm ify what rights andft eedoms he/she claims to have been violated and what concrete act of public authority is subject to challenge." 22. In addition, the Court takes into account Rule 36 [Admissibility criteria] of the Rules of Procedure (1) The Court may review, eferrals only if: (d) The, efe,., al is prima facia justified or not manifestly ill-founded." "(2) The Court shall declare a Referral as being manifestly ill-founded when it is satisfied that: [...J (b) the presentedfacts do not in any way justify the allegation ofa violation ofthe constitutional rights, or d) the Applicant does not sufficiently substantiate his claim." 23. The Court recalls that the Applicant claims that the Conditional Release Panel and the competent service of the Correctional Center in Dubrava violated his constitutionally guaranteed rights, by not mentioning any constitutional provision which would have been violated. 24. The Applicant alleges that the breach of his rights occurred as a result of erroneous interpretation of Article 3 of the CCK, in conjunction with Article 250 of the Law on Execution of Penal Sanctions, 4

5 25. The Court notes that the Conditional Release Panel informed the Applicant that "a convicted person has the right to submit a request for conditional l'elease through the correctional facility in which he 01' she is sel'ving his OT' her sentence to the panel for conditional l'elease established pursuant to the Criminal Code ofkoso vo ". 26. In that respect, the Court also notes that the Conditional Release Panel further notified the Applicant that "the Correctional Centel' in Dubrava has not submitted your personalfilefor review yet". 27. The Court further notes that the Correctional Center in Dubrava informed the Applicant that "with regat'd to the cl'iminal offense of Murder for which you are sentenced, the O'iminal Code of Kosovo fol'esees the application f01' conditional release with 2/3 of the sentence which means that you will win the right to apply on ". 28. The Court further notes that the Applicant's main question is whether he is entitled to conditional release after having served two thirds (2/3) of the sentence, in accordance with the previous Criminal Code, or after having served one half (1/2) of the sentence, in accordance with the new Criminal Code. The Applicant considers that, pursuant to Article 3 [Application of the most favorable law] of the new Criminal Code, he is entitled to conditional release after having served one half (1/2) of his sentence. 29. In fact, the Applicant complains that the Conditional Release Panel and the Correctional Center in Dubrava_erroneously interpreted the law with regard to fulfillment of legal conditions for conditional release and considers that they should have construed the relevant legal provision in a different way, 30. However, that procedural argument pertains to the domain of legality and as such does not fall under the jurisdiction of the Constitutional Court. 31. In this respect, the Court emphasizes that the legal interpretation of the applicable law on conditional release is a matter of legality. It is not the task of the Constitutional Court to deal with errors of law Oegality) allegedly committed by the public authorities, unless and in so far as they may have infringed rights and freedoms protected by the Constitution (constitutionality). The Applicant did not provide any procedural or material reasoning regarding alleged constitutional violations. 32. In addition, the Constitutional Court reiterates that it does not act as a court of fourth instance, in respect of the decisions taken by the regular courts or other public authorities. It is the role of the regular courts or other public authorities, when applicable; to interpret and apply the pertinent rules of both procedural and substantive law. (See, mutatis mutandis, GaT'cia Ruiz v. Spain, No /96, ECtHR, Judgment of 21 January 1999, para, 28. See also Constitutional Court case No. KI70/11, Applicants Faik Hima, Magbule Hima and Bestar Hima, Resolution on Inadmissibility of 16 December 2011). 5

6 The Constitutional Court can only consider whether the proceedings viewed in its entirety have been conducted in such a way that the Applicants had a fair decision. (See, inter alia, Edwards v. United Kingdom, No /87, Report of European Commission of Human Rights of 10 July 1991; mutatis mutandis, Shub v. Lithuania, No /06, ECtHR, Decision of 30 June 2009). 34. The Court considers that the Applicant has not submitted any prima facie evidence indicating a violation of his rights under the Constitution. (See Vanek v. Slovak Republic, No /99, ECtHR, Decision of 31 May 2005). 35. In fact, the Court further considers that the Applicant has not presented evidence showing how and why the decision of the Conditional Release Panel and of the Correctional Center in Dubrava on not granting his conditional release entails a violation of his individual rights and freedoms guaranteed by the Constitution. 36. The Court notes that the Applicant's case is similar to other cases already decided by it. For instance, in the case No. KI 90/13 (Applicant Lumni Limaj, Resolution on Inadmissibility, of 24 March 2014). The Applicant's request for constitutional review was rejected as manifestly ill-founded since the Court considered that the Referral was not p/'imafacie justified. 37. Finally, the Court considers that the Applicant's dissatisfaction with the outcome of the case cannot of itself raise an arguable claim of a breach of his "fundamental constitutional right". (See: for example, Constitutional Court Case No. KII25/11, Shaban Gojnovci, Resolution on Inadmissibility of 28 may 2012, paragraph 28). 38. In sum, the Court also considers that the Applicant's Referral does not meet the admissibility requirements established by the Constitution and as further provided by the Law and the Rules of Procedure. 39. Therefore, the Court finds that in accordance with the Constitution, and Rule 36 (1) d) and (2) a), the Referral is manifestly ill-founded as not prima facie justified and thus it is inadmissible. 6

7 FOR THESE REASONS The Constitutional COlllt of Kosovo, pursuant to Atticle and 7 of the Constitution, Atticle 48 of the Law and Rules 36 (1) d) and (2) a) of the Rules of Procedure, in the session held on 15 September 2016, 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,dth Article 20-4 of the Law; IV. This Decision is effective immediately. 7