Exclusion of a Judge and the Right to an Impartial Trial
In Case No. Up-562/14 (Decision dated 2 March 2017, Official Gazette RS, No. 14/17), the Constitutional Court decided on the constitutional complaint of a complainant who lodged a request for the exclusion of two judges of the Koper Higher Court from the panel that was deciding his appeal against the order of the first instance court. The courts rejected his request, as the complainant allegedly did not lodge it in time, since it was lodged one day after the session of the appellate panel. According to Article 72 of the Civil Procedure Act, the decisive moment for assessing whether a request for exclusion has been lodged in time is allegedly the moment when a decision is issued, not the moment it is dispatched. In the assessment of the courts, this position could not be influenced by the fact that the complainant only learned of the composition of the appellate panel on the day when it adopted the decision.
In accordance with the first paragraph of Article 23 of the Constitution, everyone has the right to have any decision regarding his or her rights, duties, and any charges brought against him or her made without undue delay by an independent, impartial court constituted by law. The right to judicial protection thus, inter alia, includes the safeguard that a decision be adopted by an impartial court. The structural and organisational characteristics of a court are also of essential importance for a review of the impartiality of that court. It does not suffice that in proceedings the court acts and decides in an impartial manner; the court must also be composed in such a manner that there exist no circumstances that would raise doubt regarding the appearance of the impartiality of the judges. One of the most important procedural statutory institutions intended to ensure the right to an impartial trial is the institution of the exclusion of a judge. The second paragraph of Article 72 of the Civil Procedure Act determines the temporal limits of this procedural entitlement of a party by imposing upon the party the obligation to request an exclusion as soon as he or she learns of the existence of grounds for exclusion, but no later than by the end of the main hearing before the competent court, or, if no main hearing is held, up until a decision is issued.
The Constitutional Court assessed that a time limit for lodging a request for the exclusion of a judge is necessary for ensuring effective judicial protection without undue delay. Nevertheless, this limitation may prove excessive in certain instances. The Constitutional Court deduced from the judicial case file that the complainant did not know and could not have known that a specific judge would be deciding on his appeal. The Koper Higher Court namely did not inform him of the composition of the panel beforehand. Furthermore, the complainant could not have learned who was going to decide on his appeal if he had consulted the Annual Work Schedule of the Judges of the Koper Higher Court that is published on that court’s website. Immediately after the complainant had learned – on the basis of his own enquiries – that the judge in question was to participate in the panel, he requested that she be excluded. The Higher Court received the complainant’s request for exclusion on the day following the session of the appellate panel, i.e. before the court dispatched the decision. Therefore, in the assessment of the Constitutional Court, in order to ensure the appearance of impartiality, the Higher Court should have deemed that the request was lodged in time. The legislation in force did not contain any obstacles to such. The second paragraph of Article 72 of the Civil Procedure Act can be interpreted as meaning that an exclusion may be requested until a decision is dispatched. Therefore, in the case at issue, a broader interpretation of the law that is constitutionally acceptable could have been applied.
In the case at issue there thus existed no obstacles to the adoption of the constitutionally acceptable position that the complainant requested the exclusion of the judge in due time. As, in light of the circumstances of the case at issue, the courts did not ensure the complainant the opportunity to effectively realise his request, they violated his right to an impartial trial determined by the first paragraph of Article 23 of the Constitution.