Constitutional court case law

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The Unjustified Exclusion of a Judge
In Case No. Up-502/14 (Decision dated 15 June 2017, Official Gazette RS, No. 64/17), the Constitutional Court decided on the constitutional complaint of a complainant who claimed, inter alia, that his right to judicial protection stemming from Article 23 of the Constitution was violated in criminal proceedings, as the duly appointed judge unjustifiably requested that she be excluded from his trial.

The Constitutional Court reviewed the case from the perspective of the second paragraph of Article 23 of the Constitution, which determines that only a judge duly appointed pursuant to rules previously established by law and by judicial regulations (the so-called lawful judge) may judge an individual. This provision is a special constitutional requirement ensuring the exercise of the right to impartial proceedings determined by the first paragraph of Article 23 of the Constitution. In the case at issue, the Constitutional Court restricted itself to a review of whether and in what instances a judge’s unjustified exclusion from a trial can raise reasonable apprehension in the parties as well as in the general public that the case will not be decided in an impartial manner. During the review, the Constitutional Court distinguished two situations, namely (1) the situation when a duly appointed judge is unjustifiably excluded from a trial against his or her will (the reassignment of the case by the president of the court on his or her own initiative or on the motion of a head of a department of the court; the transfer of territorial jurisdiction on the basis of a motion of a court, a party to proceedings, or an injured party; the exclusion of a judge that said judge opposed), and (2) a situation where an unjustified motion for the exclusion of a judge is lodged by the judge him- or herself or when such motion is lodged by a party and the judge grants it. In the assessment of the Constitutional Court, in the first situation the unjustified reassignment of a case or the unjustified exclusion of a judge is by itself sufficient grounds for a reasonable apprehension that the case will not be decided in an impartial manner. However, the situation is different when the judge in question does not oppose his or her exclusion. In such instances, the likelihood that the exclusion of the judge will have an inadmissible effect on the outcome of the proceedings is so insignificant that this circumstance cannot by itself raise objectively substantiated doubt as to the impartiality of the proceedings. In such instances additional circumstances must exist that indicate that the unjustified exclusion was effected with the intention of influencing the outcome of the proceedings and that it was not a consequence of a mistake of the judge as regards the identity of the parties, an erroneous interpretation of the grounds for the exclusion, an erroneous assessment of the facts, or other reasons that have no functional connection to the outcome of the proceedings.
In the case at issue, the judge lodged the motion for her exclusion herself, and the Constitutional Court found no circumstances indicating that her exclusion was abused with the intention of influencing the outcome of the proceedings either in the case file or in the constitutional complaint. Furthermore, there was no dispute that the judge who subsequently tried the case was duly appointed pursuant to judicial regulations. In light of the above, the Constitutional Court concluded that there had been no violation of the right to a duly appointed judge stemming from the second paragraph of Article 23 of the Constitution, and therefore also no violation of the right to an impartial court stemming from the first paragraph of Article 23 of the Constitution.
Legal basis:
Cases joined:
Full text:
Type of procedure:
constitutional complaint
Type of act:
individual act
Zoran Kovač, Kingdom of Belgium
Date of application:
23. 6. 2014
Date of Decision:
15. 6. 2017
Type of decision adopted:
Outcome of proceedings:
Official Gazette RS, No. 64/2017

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All decisions the Constitutional Court adopted since independence of Slovenia, with the exception of orders rejecting constitutional complaints or not accepting them for consideration on the merits that contain as reasoning only the reference to the statutory basis of the decision and the composition of the panel of the Constitutional Court (the fourth paragraph of Article 55c of the Constitutional Court Act), are published on this website.

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