SECOND SECTION

DECISION

Application no. 32612/19 Boštjan ŠOBA against Slovenia

The European Court of Human Rights (Second Section), sitting on 14 December 2021 as a Committee composed of:

Branko Lubarda, President, Pauliine Koskelo, Marko Bošnjak, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 32612/19) against Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 June 2019 by a Slovenian national, Mr Boštjan Šoba, who was born in 1968 and lives in Videm, Dobrepolje (“the applicant”) who had been granted legal aid and was represented by Mr R. Završek, a lawyer practising in Ljubljana;

the decision to give notice of the complaint under Article 6 § 1 about the alleged lack of impartiality of the first-instance court to the Slovenian Government (“the Government”), represented by their Agent, Mrs A. Vran, State Attorney, and to declare inadmissible the remainder of the application;

the decision rejecting the Government’s objection to the participation of Judge Marko Bošnjak in the consideration of the present case;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1 . The application concerns the alleged lack of impartiality of the judge who presided the trial in which the applicant was convicted.

2. In 2003 the then Ljubljana Local Court’s judge D.F. convicted the applicant for aiding B.Š. with the commission of bribery, and B.Š. for bribery. After the pronouncement of the judgment B.Š. said that “this judge could only be capable of cleaning toilets at the court let alone [she could] judge,” which was reported in the media. Subsequently, Judge D.F. made a request that criminal proceedings for defamation be instituted against B.Š. In his defence B.Š. explained that he had been undergoing psychiatric treatment which had affected his judgment, had been in shock when he had made the statement and acknowledged that the statement was inappropriate. Further to Judge D.F.’s withdrawal of her request for prosecution, the court discontinued the criminal proceedings against B.Š. on 4 June 2007.

3 . In the meantime, in 2004, new charges were brought against B.Å . and eleven other suspects, including the applicant. The Ljubljana District Court, in a panel composed of presiding judge M.Å .Å . and two lay judges, split the proceedings in so far as they concerned the applicant, who was not reachable as he was in Canada. As regards the other defendants, Judge M.Å .Å ., on 14 July 2007, pronounced a judgment, finding, inter alia , B.Å . guilty of a continuing offence of abuse of office .

4 . After the applicant had been extradited to Slovenia in 2011, the proceedings against him were conducted by the Ljubljana District Court’s panel composed of presiding judge D.F. (the same judge as mentioned in paragraph 1 above) and two lay judges. On the day of the hearing held on 26 September 2011 the applicant lodged a request for recusal of Judge D.F. arguing that the case had not been lawfully attributed to her and that the acquittal of the applicant would have positive consequences for B.Š., who Judge D.F. had accused of defamation. The panel rejected the request, noting that Judge D.F. had been appointed to the case pursuant to a lawful procedure and that B.Š. was not a co-accused in this case. Judge D.F. also warned the applicant’s representative that filing the requests like this twenty minutes before a hearing was an abuse of the procedural rights.

5 . During the proceedings the court heard numerous witnesses, obtained forensic evidence and examined telephone records. On 12 December 2011 the applicant was convicted of a continuing offence of aiding B.Š. with the commission of abuse of office . He was sentenced to imprisonment. The court explained in its judgment that the case was attributed to Judge D.F. on a proper legal basis; that the applicant’s guilt was determined on the basis of a large body of evidence; and that the applicant’s allegations of lack of impartiality had in any event been made in a vague manner and were unsubstantiated.

6. In his appeal the applicant argued that the outcome of the proceedings against him could affect B.Š., who had been accused of defamation by Judge D.F. He also stated that “there was a suspicion that Judge D.F. could not wish for a positive effect as regard B.Š., which [was] totally obvious from the reasoning.” The Ljubljana Higher Court dismissed his complaint concerning the alleged lack of impartiality essentially on the same grounds as those provided by the first-instance court, noting also that the witness statement by B.Š. represented only a minor part of evidence examined in the proceedings.

7. The applicant’s request for the protection of legality was dismissed by the Supreme Court.

8. On 26 November 2018 the Constitutional Court, with seven votes against one, decided not to accept the applicant’s constitutional complaint for consideration.

9. The applicant complained under Article 6 § 1 of the Convention that, in the criminal proceedings against him, Judge D.F. could not have been considered impartial due to her position as an injured party in the defamation proceedings against B.Š. In particular, the applicant argued that had he been acquitted in 2011 proceedings, this could have possibly led to a re-opening of the criminal proceedings against B.Š. which would have undermined the basis of the criminal prosecution for defamation initiated by Judge D.F. The applicant thus alleged that Judge D.F. had an interested in convicting him.

THE COURT’S ASSESSMENT

10. The general principles concerning the requirement of impartiality, within the meaning of Article 6 § 1 of the Convention, have been summarised in Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, §§ 537 and 538, 25 July 2013. In this connection, it is to be noted that the mere fact that a judge has already ruled on similar but unrelated criminal charges or that he or she has already tried a co-accused in separate criminal proceedings is not in itself sufficient to cast doubt on that judge’s impartiality in a subsequent case (see, among many authorities, Kriegisch v. Germany (dec.), no. 21698/06, 23 November 2010). In the present case, the Court does not find anything in the applicant’s submissions substantiating that the previous trial, resulting in the 2003 conviction of the applicant and B.Š. in relation to bribery, prejudiced the question of the applicant’s guilt or led to a preconceived view on the merits of his case by the court deciding in the 2011 criminal proceedings against him. It furthermore notes that Judge D.F. who presided over the 2011 trial in which the applicant was found guilty of a continuing offence of aiding B.Š. with the commission of abuse of office (see paragraph 5 above) had had no role in the trial in which, in 2007, B.Š. had been found guilty of the continuing offence of abuse of office (see paragraph 3 above).

11. The applicant also alleged that Judge D.F. had an interest in convicting him in 2011 criminal proceedings because of the criminal prosecution for defamation which she had instituted against B.Å . (see paragraph 1 above). The Court notes that though B.Å . was the applicant’s co ‑ accused in the 2003 trial as well as in the subsequent set of proceedings, the criminal defamation case initiated by Judge D.F. concerned the statement made by B.Å . and not the applicant. This statement related to the 2003 conviction not the charges for which the applicant was tried in 2011. Moreover, B.Å . had acknowledged that the statement had been inappropriate and the criminal defamation proceedings were discontinued in 2007 (see paragraph 1 above), which is long before the 2011 trial against the applicant took place.

12. In these circumstances and in the absence of any indication of hostility or ill will against the applicant on the part of Judge D.F., the Court finds the applicant’s allegations of lack of impartiality unsubstantiated. It lastly notes that the applicant’s allegations of bias, which were formulated in rather vague terms, were examined by the panel of the Ljubljana District Court as well as by the appeal courts in their review of the applicant’s conviction and their findings were reasoned and based on proper legal grounds.

13. Consequently, the Court finds no appearance of a violation of Article 6 § 1 of the Convention. It follows that this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 January 2022.

Hasan Bakırcı Branko Lubarda Deputy Registrar President