Communicated on 25 June 2020 Published on 15 July 2020

SECOND SECTION

Application no. 32612/19 Boštjan ŠOBA against Slovenia lodged on 10 June 2019

SUBJECT MATTER OF THE CASE

The application concerns the alleged lack of impartiality of judge D.F., who was the president of the panel (consisting of one professional judge – D.F. – and two lay judges) of the Ljubljana District Court which convicted the applicant for the continuing offence of aiding the abuse of office or official duties. Prior to the applicant ’ s conviction, the same judge convicted at first instance B.Š. as the main perpetrator of that offence.

Before the Ljubljana District Court the applicant requested that judge D.F. be removed from the adjudicating panel and replaced by another judge. He argued that D.F. could not be considered impartial since she had initiated the private prosecution against B.Š. for his allegedly insulting remarks about her judicial work following his conviction. In the applicant ’ s opinion, D.F. had an interest in upholding her conviction against B.Š. who had also been called as a witness in the applicant ’ s case. Judge D.F. rejected the applicant ’ s request for her removal, finding that, by submitting the request twenty minutes before the main hearing, he had abused his procedural rights She added that the applicant and not B.Š. was the defendant and that the applicant ’ s guilt would not be determined on the basis of a single witness.

The Ljubljana Higher Court and the Supreme Court upheld the applicant ’ s conviction on appeal, reiterating that there were no reasons to justify judge D.F. ’ s removal. On 27 November 2018 the Constitutional Court decided not to accept the applicant ’ s constitutional complaint for consideration (served on 14 December 2018).

The applicant complains under Article 6 § 1 of the Convention that, in the criminal proceedings against him, judge D.F. of the Ljubljana District Court was not impartial.

QUESTION TO THE PARTIES

In view of judge D.F. ’ s involvement in the conviction of B.Å . for a criminal offence (in which the applicant had allegedly participated) and her subsequent privately initiated prosecution against B.Å . for remarks made in relation to her judicial work, was the Ljubljana District Court ’ s panel (presided by D.F.), which dealt with the applicant ’ s case at first instance, subjectively and objectively impartial, as required by Article 6 § 1 of the Convention (see Ferrantelli and Santangelo v. Italy , 7 August 1996, §§ 58-60, Reports of Judgments and Decisions 1996 ‑ III; Kyprianou v. Cyprus [GC], no. 73797/01, § § 118- 21, ECHR 2005 ‑ XIII; Morice v. France [GC], no. 29369/10, §§ 73-78, ECHR 2015; and Sigur ð ur Einarsson and Others v. Iceland , no. 39757/15, §§ 55-58, 4 June 2019)?