Request for Protection of Legality: Application of the Most Favourable Law
| Date | 01 December 2006 |
| DOI | 10.1350/jcla.2006.70.6.490 |
| Author | Haki Demolli |
| Published date | 01 December 2006 |
| Subject Matter | Supreme Court of Kosovo, Criminal Division (Gjykata Supreme E Kosovës, Kolegji Penal) |
Supreme Court of Kosovo,
Criminal Division (Gjykata Supreme
E Kosovës, Kolegji Penal)
Request for Protection of Legality: Application of the
Most Favourable Law
Judgment of 18 March 2005, Pkl nr 16/2004
The defendant was convicted of fraud in 2002, under provisions of
Criminal Law of Kosovo (CLK) dating from 1977. Article 140(1) of CLK
provides that a criminal offence of fraud is committed by a person who,
‘with intention to obtain unlawful profit for himself or for another
person, deceives a person by falsely presenting or concealing the facts, or
keeps him deceived and pushes him to do or fail to do something
detrimental to his or another person's property’. (In other words, as
regards the crime of fraud, the perpetrator uses deceit to make a person
act to the detriment of his own property or that of a third party. The
detriment to the property can be the result of either an action or an
omission. In this crime, deceit means falsely presenting facts or hiding
facts from someone.) Under this provision, the offence attracted a
sentence of imprisonment for between three months and five years.
Article 2 of the Provisional Criminal Code of Kosovo (PCCK), stipulating
that the ‘most favourable law’ should be applied to a defendant, came
into force on 6 April 2004. Under Article 261(1) of the PCCK, the
offence of fraud attracts a maximum sentence of three years.
The defendant applied on 21 April 2004 to the District Court of
Prishtinë to have his offence legally reclassified in accordance with the
PCCK. In deciding the defendant’s application, the District Court con-
sidered the offence of fraud under the provisions of the CLK, and did not
consider Article 2 of PCCK.
The defendant considered that the decision of the District Court had
violated the criminal law, specifically Article 2(2) of the PCCK, because
the provisions of the PCCK, which had entered into force after the CLK,
were more favourable for the defendant than the provisions of the
CLK, which was in force at the time that the offence was committed and
during the procedure at first instance. Article 2(2) of the PCCK states
that ‘in the event of a change in the law applicable to a given case prior
to a final decision, the law more favourable to the perpetrator shall
apply’. The Kosovo Supreme Court considered the defendant’s request
for protection of legality and whether to review the decision of the
District Court.
The defendant found support for the request for protection of legality
in Article 451 of the Provisional Criminal Procedure Code of Kosovo
(PCPCK). Article 451(1) of PCPCK states that:
A request for protection of legality against a final judicial decision or against
judicial proceedings which preceded the rendering of that decision may,
490
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