Published on 26 July 2021

SECOND SECTION

Application no. 19920/20 Milko Å KOBERNE against Slovenia lodged on 21 April 2020 c ommunicated on 9 July 2021

SUBJECT MATTER OF THE CASE

The application concerns the criminal proceedings in which the applicant, a former district court judge, was convicted for the continuous criminal offence ( nadaljevano kaznivo dejanje ) of bribery. R. and S. were alleged co-offenders, acting as intermediaries in the bribery. A common trial had been conducted against the applicant, R. and S. but following R. ’ s and S. ’ s admission of guilt at one of the hearings the charges against them were severed and they were tried separately. Nonetheless, both sets of proceedings - the one against R. and S. and the one against the applicant - continued to be presided over by the same judge. She had rendered a judgment convicting R. and S. based on their admission of guilt, in which she had referred to the role of the applicant in the execution of the criminal offence, and subsequently, in the separate set of proceedings, she convicted the applicant. During the proceedings against the applicant the investigating judge obtained traffic data relating to the applicant from certain network operators. In the judgement convicting the applicant the trial court relied on some of this data.

The applicant complains under Article 6 § 1 of the Convention that the trial judge, which convicted him, could not be considered impartial given her role in the proceedings against R. and S. and the content of the judgment she had rendered against them. He also complains under Article 6 §§ 1 and 3 (d) of the Convention about the first-instance court ’ s refusal to examine R. and S. as witnesses at the trial. The applicant further complains under Article 8 of the Convention about the storage of the traffic data relating to his telecommunication activities and its use in the proceedings against him.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against him in accordance with Article 6 § 1 of the Convention? In particular, having regard to the references to the applicant in the judgment convicting R. and S., could the trial judge, which dealt with the applicant ’ s case, be considered impartial, as required by Article 6 § 1 of the Convention (see the principles set out in Poppe v. the Netherlands , no. 32271/04, §§ 22-26, and Miminoshvili v. Russia , no. 20197/03, §§ 113 to 116, 28 June 2011)?

2. Should the applicant ’ s request to examine R. and S. be considered as a request for examination of witnesses against him or on his behalf? Was the dismissal of his request in compliance with Article 6 §§ 1 and 3 (d) of the Convention (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118-147, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10, §§ 110-131, ECHR 2015, as regards prosecution witnesses, and Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 150-168, 18 December 2018, as regards defence witnesses)?

3. What had been the legal basis for the network operators ’ storing of traffic data relating to the applicant ’ s telecommunication activities, which the investigating judge later obtained from the operators? Was the aforementioned storage of traffic data in compliance with Article 8 requirements, including the requirement of lawfulness (see Breyer v. Germany , no. 50001/12, §§ 73-80, 30 January 2020, and Benedik v. Slovenia , no. 62357/14 , §§ 122-123, 24 April 2018)? Furthermore, did the use of such data in the proceedings against the applicant respect his right under Article 8 of the Convention?