On 17 April 2025, the Specialist Chamber of the Constitutional Court delivered its judgment on the referral made by Salih Mustafa, finding that there had been no violation of the Kosovo Constitution or the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Mr. Mustafa had alleged violations of his individual rights and freedoms in connection with the criminal proceedings against him before the Kosovo Specialist Chambers. In its judgment, the Constitutional Chamber declared part of his complaints inadmissible, and rejected the remainder.
Mr Mustafa complained about a violation of his right to a fair trial as a result of an alleged lack of reasoning by the Trial Panel and the Appeals Panel in relation to his conviction for the war crime of murder. In this regard, the Constitutional Chamber failed to detect any factual or legal errors in the criminal chambers’ reasoning that would call their findings into question. It likewise noted that Mr Mustafa had benefitted from adversarial proceedings in this connection. Therefore, it declared the complaint inadmissible.
Mr Mustafa further complained that the Supreme Court Panel had failed to correctly identify the more lenient Kosovo law for the purpose of his sentence by excluding the law that had been applicable at the time the offences were committed. In this regard, the Constitutional Chamber recalled that, under Article 162(1) of the Kosovo Constitution, the Specialist Chambers function in accordance with their own legal framework within the justice system of Kosovo. Accordingly, the fundamental rights and freedoms guaranteed by Chapter II of the Constitution apply with reference to that autonomous framework. It further found that the only binding law applicable to sentencing before the Specialist Chambers is Law No. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office, which does not require the criminal chambers to apply other Kosovo laws when determining sentences for international crimes, but only to take them into account. Thus, it held that Mr Mustafa could not successfully claim a violation of the Kosovo Constitution or the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Lastly, Mr Mustafa had complained that the Supreme Court Panel’s decision to allow Victims’ Counsel to respond to his request for protection of legality by way of written submissions had violated his fair trial rights. The Constitutional Chamber found that nothing in Mr Mustafa’s complaint gave rise to an appearance of a violation of a constitutional right. The Chamber further noted that Mr Mustafa had not properly raised this issue before the Supreme Court Panel and had therefore failed to exhaust all the effective remedies provided for by law in this regard. It thus declared this complaint inadmissible.
The Judgment can be found on the KSC website.