Impartiality, trust (limits in the dissatisfaction towards the judiciary, doxing towards judges and prosecutors), rule of law (respect of decision of the Constitutional court by the Supreme Court)

Ustavno sodišče Republike Slovenije

Constitutional Court of the Republic of Slovenia

Up-879/14-35 

20 April 2015

ECLI:SI:USRS:2015:Up.879.14

Saraiva de Carvalho v. Portugal, app. no.15651/89, 22 April 1994

De Cubber v. Belgium, app. no. 9186/80, 26 October 1984

Coeme and Others v. Belgium, app. nos. 32492/96, 32547/96, 32548/96,
33209/96 and 33210/96, 22 June 2000

Švarc and Kavnik v. Slovenia, app. no. 75617/01, 8 February 2007       

The Constitutional Court (the CC) interpreted the right to impartial trial (Article 23 of the Constitution and Article 6 ECHR) in a case of criminal conviction of leader of the opposition, where the president of the Supreme Court was not excluded despite public statements he made that could impact the appearance of impartiality.  

The case concerns impartiality of the Supreme Court. The CC had to determine, whether public statements of the president of the Supreme Court, which were said to be necessary to defend the Slovene judiciary against unwarranted criticism, doxing of judges and diminishing the reputation of the courts, were of such nature to demand the exclusion of the president of the Supreme court.

Article 23 of the Constitution

Constitutional Court, Decision U-I-65/05 of 29 September 2005  

Constitutional Court, Decision U-I-92/96 of 21 March 2002  

Constitutional Court, Decision Up-365/05 of 6 July 2006  

Constitutional Court, Decision U-I-149/99 of 3 April 2003

The applicant, then the leader of the opposition, Mr. Janez Janša, was convicted before the first and second instance courts for corruption related to acquisition of military equipment. The case was controversial and widely reported by the media. Supporters of Mr. Janša organized protests before the premises of the Supreme Court, claiming that the trial was political and labeled it a tool to remove the applicant from the political arena. The media, connected with Mr Janša mounted (personal) attacks on the prosecutors, judges and judiciary as a whole. The applicant himself criticized the courts in the same manner and even stated that he does not respect, but merely complies with the final judgment, which will be annulled, if not otherwise, by a court, which will be established in the future. In a statement for national television, he claimed that “the clock is ticking of what was attempted to be presented as independent judiciary. In the opening speech at  2014 Days of Slovene Judiciary, the president of the SC critically addressed such phenomenon, but in his words “without daring, of course, to assess the correctness and legality of the judgment”. He stated that the judiciary has to enjoy public confidence and thus must be protected against destructive attacks, especially since the targeted judges cannot respond themselves. He quoted the statements made by the applicant and warned against such extremely dangerous behaviour, which sees the judiciary as a hunting trophy and thus leads to destruction of constitutional foundations of the state. Moreover, shortly before the case was brought to the SC, the president of the SC issued a decision, that he will preside all the criminal senates until the end of the year.  

The applicant referred the case to the SC. He demanded exclusion of the president of the SC from the trial due to his partiality, which is seen from his speech and from the administrative decision to sit on all criminal senates until the end of the year. The plenary session of the SC rejected the demand for exclusion. The SC later confirmed the applicant’s conviction. In response, the applicant filled a constitutional complaint to the CC.

At the outset its reasoning related to impartiality, the CC established the general principles concerning the right to impartial trial, flowing from the settled case-law of the CC and the ECtHR. It invoked the well-known subjective-objective dichotomy. Objective impartiality, also known as appearance of impartiality, was found to be of paramount importance for the public trust in the judiciary in the democratic society. According to the CC, the decisive question was whether there exists an objectively justified doubt in the impartiality of the court. In order to dispel such doubts, it is not enough that the court acts impartially, but has to be composed in such way, that there are no circumstances which would raise doubts concerning the impartiality of judges (paras. 49-52). 

The CC then recognized the possibility of the president of the Supreme court to speak up, when he/she feels it is necessary to protect the judiciary against attacks. However, if the president critically responds to concrete action of the convict, such statements may cast doubt on the appearance of impartiality, which cannot be denied objective justification. According to the CC, it is precisely because it has to be guaranteed that there are no circumstances which cast doubt on the appearance of impartiality of judges, and such a circumstance is also a critical response to the publicly presented views of the convicted person whose appeal was rejected, the President the SC should not have participated in the role of the President of the chamber, which ruled on the applicant's remedy against the final conviction. The CC found it was irrelevant that the president made the statements in the capacity of the head of judicial administration and that he explicitly stated that he does not assess the correctness and legality of the high court judgment, as what matters is the appearance and not subjective independence of the SC’s president.

The CC did not refer to the CFREU. Nevertheless, the case is of relevance for Article 47 of the CFREU, which guarantees the right to impartial trial.  

Comparative reasoning with the jurisprudence of the ECtHR: the CC first invoked its own settled case law immediately continued by stating that the jurisprudence of the ECtHR also recognizes that both subjective and objective impartiality have to be guaranteed. (para. 50). 

The CC notes the relevant general principles of the ECtHR cases and refers to paragraph numbers, where they were expressed without further engaging into the assessment of the Strasbourg court.

The CC could have decided without invoking the ECtHR jurisprudence, only on the basis of its own case-law. The ECtHR thus served it as an additional argument providing further clarity, incontestability and  legitimacy of its decision.

After the decision of the CC, the SC issued a press-release expressing disagreement with the CC. At the outset, it held that the persuasiveness of decisions lies in the reasoning, not in the hierarchical position of the body that adopts them. After labeling the CC’s interpretation as novel and defending the regular courts, which applied the then applicable standards, it turned to the issue of impartiality. It stated that the CC did not take into account or otherwise relate to arguments, expressed by the Supreme Court’s plenary session, which were based on the jurisprudence of the ECtHR. It agreed that the appearance had a certain significance, but held that this was not decisive in itself, since one needs to focus on the reality of the situation. The appearance must be examined from the point of view of the objective reality that surrounds it. The SC opined that it seems that the neglected the circumstances of the particular case and proceeded solely from summarizing the positions of the parties to the proceedings, rather than setting the boundaries of an objective standard of appearance of impartiality. In the light of the defendant's position and the systematic and orchestrated political pressures on the judiciary, the objective standard of appearance of impartiality was set very high. According to the SC, the decision of the CC, called into question the possibility of systematically guaranteeing the independence and impartiality of the judiciary in all other proceedings.

http://odlocitve.us-rs.si/sl/odlocitev/US30635

Mohor Fajdiga, UL

1. District court of Ljubljana, Judgment II Kp 2457/2010 of 5 June 2013

2. High court of Ljubljana, Judgment II Kp 2457/2010 of 21 March 2014

3. Supreme Court, Plenary Session, Order Su 1394/2014 of 27 August - not published

4. Supreme Court, Plenary Session, Order Su 1539/2014 of 29 September 2014 - not published

5. Supreme Court, Judgment I Ips 2457/2010-1438 of 1 October 2014 

6. Constitutional Court, Decision Up-879/14-35 of 20 April 2015