KUKAJ v. SLOVENIA

 
 
FOURTH SECTION
DECISION
Application no. 49670/13
Naim KUKAJ
against Slovenia
 
The European Court of Human Rights (Fourth Section), sitting on 4 June 2019 as a Committee composed of:
Paul Lemmens, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 30 July 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1.  The applicant, Mr Naim Kukaj, is a Serbian national, who was born in 1975 and lives in Ljubljana-Polje. He was represented before the Court by Odvetniška družba Čeferin in partnerji, a law firm in Grosuplje.
2.  The Slovenian Government (“the Government”) were represented by their Agent, Mrs N. Pintar Gosenica, State Attorney.
3.  The Serbian Government were informed of their right to intervene in the proceedings, in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. They chose not to avail themselves of that right.
A.  The circumstances of the case
4.  The facts of the case, as submitted by the parties, may be summarised as follows.
5.  On 27 December 2007 the applicant, together with eight other individuals (E.E., M.S., R.S., H.K., E.Ki., E.Ka., B.G. and Z.K.), was charged with the criminal offence of producing and trafficking in drugs. The charges were brought by the State prosecutor D.K., who acted throughout the proceedings. The applicant was accused of aiding and abetting the conveyance of drugs from Kosovo to Ljubljana, their storage and onward conveyance to Italy and Switzerland in 2006 and 2007. He, together with E.E., was alleged to have the highest rank in the drug-trafficking organisation. Prior to the charges being brought, evidence had been collected through a number of surveillance and undercover operations as well as searches of premises.
1.  First-instance proceedings
6.  More than sixty hearings were held before a five-judge panel of the Ljubljana District Court composed of two professional judges and three lay judges. Judge Z.R. acted as the president of the panel and chaired the proceedings. During those hearings Judge Z.R. warned counsel on several occasions to observe the procedure and/or respect the court.
7.  At the first hearing, held on 23 May 2008, counsel for the applicant and counsel for certain other co-defendants requested that Judge Z.R. and other members of the panel be disqualified from sitting in the case because, inter alia, they had been acquainted with certain evidence which could not be relied on. At that hearing the applicant had also unsuccessfully requested the court to exclude from the file the statements D.S.O., a witness, had given in his defence in criminal proceedings against him (that is, against D.S.O.) before the Italian authorities and without the applicant being able to cross-examine him. The applicant’s counsel pointed out that an appeal was available against such a decision, but was told by Judge Z.R. that “the court thank[ed] [him] for [his] lecture (poučitvi) on the applicable law but [would] request (prosi) [him] not to repeat it in future”. The applicant’s counsel did not lodge an appeal, but counsel for another defendant did; however, it was declared inadmissible. The applicant’s counsel requested that Judge Z.R. step down on account of his lack of impartiality.
8.  The vice-president of the Ljubljana District Court, after obtaining statements from the members of the panel, examined the above requests for disqualification of some of the judges. She rejected the requests, finding, inter alia, that Judge Z.R. was competent to preside the proceedings and was acting in conformity with the Criminal Procedure Act.
9.  At a hearing on 30 May 2008 the applicant’s counsel objected to the hearing continuing after 4 p.m. – that is, after the courts’ official working hours – saying that he had to pick his child up from the nursery. His objection was at first overruled by Judge Z.R. who, however, later adjourned the hearing to the following week, scheduling it for 2, 3 and 6 June 2008. The applicant’s counsel objected, submitting that he and other lawyers from the same law firm already had prior commitments that week. As Judge Z.R. refused to again reschedule the hearing, the applicant’s counsel requested that he be disqualified under section 39(6) of the Criminal Procedure Act (see paragraph 38 below). He argued that Judge Z.R. was unwilling to “consider completely normal ... arrangements between counsel and the court concerning the scheduling of hearings” and that normal communication between the defence and the court was impossible, thus “placing the parties to the proceedings at a disadvantage”. The panel rejected the request, noting (i) that an additional hearing was scheduled for 2 June 2008 to accommodate the applicant’s counsel’s need to leave early, (ii) that the law firm representing the applicant had a large number of advocates and it had not been demonstrated in any way that they would all be engaged on the scheduled dates, (iii) that the hearing of 2 June 2008 would serve only to read out the rest of the indictment, and (iv) that the applicant had not been placed at any disadvantage compared with the other participants.
10.  The applicant’s counsel attended the hearing on 2 June 2008.
11.  On 1 July 2008, having been notified that one of the applicant’s co‑defendants had excused himself on grounds of illness, Judge Z.R., as alleged by the applicant, remarked that he had ordered that the defendant be brought to the court if need be “tied up like a salami”. That statement is not confirmed by the record of the hearing.
12.  On 21 October 2008 the State prosecutor D.K. sent an email with the subject “Re:” to Judge Z.R. advising him on the jurisprudence concerning the exclusion of evidence where such evidence had been collected abroad. The State prosecutor expressed her opinion regarding the lawfulness of the evidence gathered and referred to case-law of the domestic courts. One page of the email was placed in the criminal file. The email starts with the following statement:
“Everything in the principal file plays a role. The situation in that file IS NOT IDENTICAL to the situation in your file.”
It also contains the following subsequent passages:
“If I knew that you would make a problem out of something that was not a problem, I would not have sent you that judgment. Indeed brilliant that you have announced that already, this early, without anyone even requesting that the evidence be excluded or that the panel be disqualified.
I do not know why tomorrow they will request that the panel be disqualified. Are all nine waiting for [K.] [counsel for one of the co-defendants] to draw up a proposal for exclusion of the records?”
13.  Relying on section 39(6) of the Criminal Procedure Act (see paragraph 38 below) and referring to the content of the above email, a copy of which they found in the court’s case file, counsel for E.E. and counsel for M.S. requested that Judge Z.R. be disqualified from sitting in the case. They argued that, after learning of the relationship between the State prosecutor and Judge Z.R., as revealed by the electronic communication in question, they could no longer view Judge Z.R. as impartial.
14.  Judge Z.R. submitted his statement in reply to the request, noting that he had printed out only one page of the email in question because he had not been interested in the remaining pages. Furthermore, he said that he had sent a number of emails to the State prosecutor concerning technical questions with regard to witness examinations. He submitted copies of some of those emails. He denied that the email in question could have any influence on the panel’s decision-making and stated that he had communicated informally with counsel for the defence as well, informing them, for instance, about the change of time of witness examinations by calling them on their mobile phones outside working hours. He also asserted that he had known of the Constitutional Court’s decision of 2 October 2008, which required judicial authorisation for the inspection of mobile phone communication data and to which the State prosecutor had referred, prior to reading the email in question. In his view, the request for his disqualification was in reality aimed at delaying the proceedings to the point where the defendants would have to be released from pre-trial detention.
15.  On 11 December 2008 the vice-president of the Ljubljana District Court dismissed the requests for disqualification as unfounded. She referred to the subjective and objective test of impartiality and pointed out that the right to an impartial tribunal required the most stringent scrutiny. She went on to find that it was unclear to which email the State prosecutor had replied. However, she found no reason to disbelieve Judge Z.R.’s statement that he had previously sent the State prosecutor many messages he had received from the Slovenian representation at EUROJUST concerning the technical organisation of the witness examination abroad and that the State prosecutor had replied to one of those messages. The vice-president stated that she disapproved of the communication in question but that it was a one‑way message and that Judge Z.R. had not incited the State prosecutor to send him the case-law. She further noted that she believed Judge Z.R.’s assertion that he had already been informed of the recent Constitutional Court’s decision mentioned in the email in question before he had received the latter. On examining the records of the hearings she also found that Judge Z.R. had acted impartially throughout the proceedings and had treated the parties on an equal footing.
16.  In the meantime, on 6 November 2008, witness Mi.S. was examined in the office of the investigating judge (giudice per le indagini preliminari) in a court in Florence, Italy, in the presence of an Italian judge, A.B., a typist, an Italian trainee judge, the Slovenian judge Z.R., Mi.S.’s counsel, the Slovenian State prosecutor D.K. and a Slovenian language interpreter. The “record of examination of a witness pursuant to the request of the Slovenian judicial authorities” read, as far as relevant, as follows:
“...
The Slovenian judge orders the start of the examination.
Reply to the question of the judge: I remember more or less what I said at the examination on ..., before the court in Pisa.
Reply to the question of the judge: Two and a half years have passed since that examination.
Reply to the question of the judge: If I said back then that some people from Ljubljana forced me to do that, then that is so.
Question of the judge: Did certain people threaten you?
Reply: I do not want to answer that.
Question of the judge: This question is not putting you in an embarrassing situation, so you should answer it. We are here because of the people who threatened you. We have come here after days of travelling. Who threatened you?
Reply: I do not want to answer.
The Slovenian judge requests the Italian judge to order the detention of [Mi.S.]. The Italian judge says that the Italian legislation does not envisage detention for such situations, and that he can only inform the judicial authorities of the [fact] that the witness does not want to answer questions.
The Slovenian judge insists that the Italian judge take measures.
The Slovenian judge proposes that the Italian judge take strict measures [ostro ukrepa] against [Mi.S.], because [he] clearly does not want to answer the questions and does not want to name those who threatened him.
...
The Slovenian judge proposes a [five-minute] break so that the witness can consult with his lawyer and learn what a witness who does not want to answer questions risks.
Then he turns to the witness: “to start with, in Italy they did not put you on trial on account of the drugs. Besides that, I am participating in proceedings which have forced me to walk around accompanied. On top of this, you protect these people and I will do anything to ensure that you will be punished with the maximum available penalty in Italy as well as in Slovenia”.
...
[The Italian judge A.B.] informs the witness that his refusal to answer the question put by the Slovenian judicial authorities on the basis of the request can ... [amount to] a criminal offence in the sense of false testimony, and also the criminal offence of complicity pursuant to our [Italian] legislation given [the fact] that the investigating judge was assigned to execute the request filed and approved in accordance with the procedure.
...
Now, at the end of the examination, the witness and his lawyer ... withdraw, while the Slovenian judge demands that his statements, which may serve for the assessment of the witness’s behaviour during the examination, be entered in the record.
...
In the following [passage] the statements of the Slovenian judge are recorded as follows:
“I would like to point out that the proceedings against E.E. and others are already at the stage of indictment, which is final and totally provable (dokončna in povsem dokazljiva). The judicial proceedings concern hundreds of kilos of heroin, which are very large quantities. This [witness examination] is part of the proceedings which concern acts taking place in Switzerland, Germany, Sweden and Italy... To form a general picture, this is currently one of the most extensive investigations concerning drugs in Europe. Because of the extensiveness of the investigation I am under protection and at serious physical risk. The defendants in the proceedings are under a special prison regime. Each of the defendants is being escorted by ten officers, who are armed with long guns. These very people are being protected by [Mi.S.]. I suggest that the judicial authorities take account of this situation.
...”
17.  Based on the content of the above record, counsel for E.E., M.S. and B.G. requested on 6, 9, and 10 March 2009, respectively, that Judge Z.R. be disqualified from sitting in the case, citing section 39(6) of the Criminal Procedure Act (see paragraph 38 below). They referred to Judge Z.R.’s negative attitude towards the defendants and his conviction that the indictment could be proved. One of the defence lawyers proposed that the court obtain the audio recordings of the witness Mi.S.’s examination.
18.  The State prosecutor D.K. disputed counsel’s allegations in the above request.
19.  Judge Z.R. also submitted his statement. He maintained that the record of 6 November 2008 (see paragraph 16 above) had been handwritten in Italian and later typed up without being read out to the participants, and largely disputed the content. Although the examination had lasted ninety minutes, the record ran to only four pages. He described the course of the examination. According to Judge Z.R., he had explained to witness Mi.S. that the fact that the indictment had become final meant that there existed the quality and quantity of evidence substantiating the probability that the alleged acts had been committed to the extent of provability (utemeljuje v meri dokazljivosti). He argued that the record contained no mention of the context in which the actual remark had been made. He gave the following explanations, among others:
“When the witness made it clear that he would not answer further questions ... I explained to him again that we had travelled for two days to reach Florence and had come not because of him but because of the persons connected to the defendants and because of the defendants themselves. I then explained that we were dealing with a case against a criminal organisation ... that it was a very complex case ... and that he could see the presence of ... a number of police officers, who were protecting me ..., and that it was clear that a refusal to participate in the examination could be understood as helping the defendants, who were reasonably suspected (utemeljeno osumljenimi) of committing [criminal] acts. With this warning I of course meant only [the applicant] and ... and possible partners ... in intimidating witnesses.”
20.  Judge Z.R. further argued that the witness Mi.S.’s statement that he had feared that the defendants would kill his family had also not been included in the record. That was essential to the understanding of Judge Z.R.’s statement given on the record after the end of the examination.
21.  On 10 March 2009 the vice-president of the Ljubljana District Court rejected the above request of counsel for E.E., M.S. and B.G. for Judge Z.R.’s disqualification. She found that counsel’s allegations had been based solely on the deficient record as they had not been present during the witness examination in Florence. She found nothing in the case file indicating that Judge Z.R. had already formed his decision on the matter because the proceedings had still been at the stage of examining the evidence proposed by the prosecution. She also noted that this was the fourth request for disqualification of Judge Z.R., which undoubtedly indicated an abuse of process. As regards the request that the court obtain the audio recordings, the vice-president noted that the burden of proof was on the respective defendant, who should have acquired such recordings, provided that they existed, and substantiated his allegations. She concluded that the defence lawyers’ allegations were unfair, general and, in particular, aimed at delaying the proceedings.
22.  Meanwhile, on 6 January 2009, the applicant had requested that the court appoint an Albanian language expert with a view to proving that the word “mekš” was a generic name and therefore could have been used for anyone, not only the applicant as alleged by the prosecution. The court rejected the request, finding that, although in principle “mekš” was a generic name of diminutive meaning, it had been used as a nickname for the applicant according to the evidence in the file. The court went on to cite the evidence which, in its view, supported that conclusion.
23.  On 24 April 2009 Judge Z.R., as alleged by the applicant, said to the applicant’s counsel that it was inconceivable what rights defence counsel had in Slovenia. The applicant’s counsel made a comment at the end of the record explaining that Judge Z.R.’s remark was not put on the record.
24.  On 17 June 2009 the applicant made a number of requests to adduce evidence. The following requests were dismissed by the court:
i) the request for information to be obtained concerning inspections carried out at his fruit and vegetable shop, including by questioning the inspectors who had carried out the inspections, with a view to proving that drugs could not have been stored in the shop. The court refused to grant the request, explaining that the proposed evidence could only show that on certain days there had been no drugs in that shop. Moreover, the applicant’s conviction was not based on the fact that he had stored drugs in that particular shop, but that he had stored drugs in several locations in Ljubljana.
ii) the request for information about the cars he had owned thus far to be obtained from the Ministry of Interior with a view to proving that he had not owned a specific car allegedly used for drug trafficking. The court refused the request on 3 July 2009, noting that the car’s ownership was not relevant as the applicant could have had cars in his possession without necessarily owning them.
iii) the request for witness B.B. to be examined since witness F.M., who had testified that the applicant had been involved in drug trafficking, had relied on what B.B. had told him. The applicant alleged that there had been no evidence that B.B. had existed and even less that he had incriminated the applicant. The court rejected the request at the hearing of 3 July 2009. It explained that the applicant’s role in drug trafficking as indicated by F.M. had been proven by sufficient evidence, such as telephone tapping, statements of other witnesses and data found on a drug courier’s mobile phone.
iv) the request that the court obtain information from police concerning a certain traffic accident. The applicant also proposed that the court examine witness M.R., who could testify that the applicant had intended to sell a certain car to B.G., who had ended up having the aforementioned accident while test driving that car. This was intended to prove that the telephone communications between the applicant and B.G., which had been used as evidence in the proceedings, concerned the damage resulting from the accident and not drugs as alleged by the prosecution. The court refused the request, noting in its judgment that the recorded conversations concerned drug trafficking and that this finding was explained at length in the reasoning supporting the conviction. The court noted, by way of example, that a certain A.K. had been asking B.G. to “go to a shop for medicine” and “return money to the shop to [the applicant]”, which, in the context of other evidence, obviously concerned drug trafficking and not the damage relating to the aforementioned accident.
v) the applicant proposed that a number of witnesses be heard in relation to a contract of sale for a certain property in Kosovo with a view to proving that the allegedly incriminating telephone conversations had in fact concerned transactions related to that purchase. He submitted that these witnesses could testify about the applicant’s difficulties in meeting the obligations under the sale contract which should prove both that he had been in financial difficulties, and thus unable to pay for the drugs as alleged, and that the recorded conversations concerned the property sale and not drugs. While the court accepted that the applicant had signed the aforementioned contract and also fulfilled some of its conditions, it did not consider the request for witnesses relevant to the outcome of the case, finding that the fact that the applicant had been engaged in some lawful activities did not undermine the charges. The court likewise noted that the fact that the applicant had had certain financial difficulties at the relevant time was not in question.
vi) the applicant proposed that a witness, I.K., be examined in order to establish that the applicant’s business had in fact been concerned with a lawful car sale. This request was rejected. The court explained that it had no doubt that some of the applicant’s business activities had been legal. It found that further evidence to that effect would not be capable of undermining the charges concerning the illegal activities, which had an autonomous evidentiary basis.
25.  On 25 August 2009 the applicant requested that D.P., who had participated in a search of a certain car in Italy during which heroin had been found, be questioned with a view to proving that the search was unlawful. The court refused to carry out the questioning, finding that the search had been approved by the Italian public prosecutor and that questioning a person who had participated in the search in a technical sense, by opening the car, was irrelevant in this regard.
26.  On 1 September 2009 the State prosecutor filed an amended bill of indictment in which the applicant and four other co-defendants were accused of having carried out certain further acts as part of the same joint criminal activity.
27.  At a hearing on 11 September 2009 the applicant requested that the proposed amendment of the bill of indictment be rejected. The court refused to decide on the request, explaining that the decision on that issue should be made in the final judgment.
28.  Subsequently, hearings were held on 18, 22, 24 and 25 September 2009. On 18 September 2009 the applicant requested, inter alia, that witnesses I.K. and R.K. be cross-examined in view of the amended charges. The applicant argued that they would have testified to the effect that they had not assisted with transport of cars to Kosovo. The court noted that the allegations concerning the exchange of cars for drugs had been known from the outset; moreover, the fact that cars had been transported to Kosovo had not been denied by the applicant. It followed that the proposed witnesses’ testimony would not have added any relevant information.
29.  On 25 September 2009 the panel delivered its verdict following deliberations lasting three hours. The court found the applicant guilty of the criminal offence of producing and trafficking in drugs within a criminal organisation. He was sentenced to a fifteen-year prison term and a fine of 25,000 euros (EUR) and to the seizure of illegally acquired profit in the amount of EUR 35,000.
30.  Three months later a 519-page written judgment was sent to the applicant. The court explained in the judgment that the amendment of the bill of indictment amounted to additional acts of participation in certain particular events which were part of the organised activity of illegal production and trafficking in drugs, which had taken place in 2006 and 2007, and of which the defendants had been accused from the outset. It found, further, that all the evidence on which the amendment was based had been accessible to the applicant for two years and that he had had three weeks to respond to the amended bill of indictment. The court also refused the applicant’s requests for the production of certain evidence.
2.  Second-instance proceedings
31.  The applicant and his co-defendants appealed.
32.  On 16 December 2010 the Ljubljana Higher Court upheld the appeal in part, finding that the allegations concerning the applicant’s purchasing of drugs, under one of the many counts, had not been proven. The court dismissed the remainder of the appeal, finding as follows:
i) as regards the defendants’ unsuccessful attempts to have Judge Z.R. removed, the Higher Court found that the decisions of the vice-president of the Ljubljana District Court (see paragraphs 8, 15 and 21 above) were correct and noted that the appellants had merely repeated the content of requests which had already been decided, but had not specifically challenged the reasons relied on by the vice-president in refusing them.
ii) nevertheless, it found that though Judge Z.R.’s behaviour during the examination of witness Mi.S. (see paragraph 16 above) may have been brusque, he had acted within the limits of the Criminal Procedure Act. As to his remark that the charges had been provable, the court referred to the final nature (pravnomočnost) of the indictment, indicating a possibility that the allegations stated therein would be proved.
iii) regarding Judge Z.R.’s remark at the first hearing about counsel lecturing the court (see paragraph 7 above), the Ljubljana Higher Court considered this to be a warning which had not given rise to the circumstances concerned in section 39(6) of the Criminal Procedure Act (see paragraph 38 below), in particular as the appeal lodged by M.S.’s counsel had been dismissed.
iv) as to the communication between the State prosecutor and Judge Z.R. (see paragraph 12 above), the court found that Judge Z.R. had credibly explained the circumstances in which he had learned of the Constitutional Court’s decision in question (see paragraph 14 above) and that he had been exceptionally harsh with the State prosecutor even before the request for his removal had been made, as he had for instance not allowed her to ask certain questions and had requested that she be replaced. The Higher Court found that there was no indication of a lack of impartiality.
v) regarding the amendment of the bill of indictment (see paragraphs 26 to 28 above), the Higher Court noted that this had concerned only additional acts which were part of the criminal offence with which the applicant had initially been charged. The applicant had been given enough time to prepare a defence regarding the amended charges. As regards the allegation that none of the requested evidence had been allowed following the amendment of the bill of indictment, the Higher Court noted that the complaints concerning this aspect were so general that they could not be examined. It nevertheless noted that a number of other requests for evidence, which had been legally relevant, were granted by the first-instance court.
vi) regarding the statement given by D.S.O. to the Italian authorities (see paragraph 7 above), the Higher Court noted that the defendants should have requested its exclusion from the file before the beginning of the hearing, pursuant to the relevant provisions of the Criminal Procedure Act, but had failed to do so and had offered no explanation in that regard. In addition, the Higher Court found that the defendants had been able to cross-examine D.S.O. at the hearing and had therefore had an opportunity to challenge the credibility of the impugned statement.
vii) regarding the applicant’s allegations concerning the lower court’s refusal to hear B.B., the Higher Court noted, in addition to what had already been said by the lower court (see paragraph 24 above), that F.M. had in fact testified about things he had witnessed directly and had mentioned B.B. only as one of the other sources from which he had also heard about the applicant’s drug business – a fact which had, in any case, been supported by other material evidence in the file.
viii) the Higher Court also addressed the complaints raised by the applicant concerning the first-instance court’s refusal to obtain other evidence (see paragraphs 24, 25 and 28 above), before dismissing them and upholding the reasons given by the lower court.
3.  Appeal on points of law
33.  The applicant and certain co-defendants lodged an appeal on points of law against the above judgment.
34.  On 14 February 2012 the Supreme Court dismissed the appeal on points of law, upholding the Ljubljana Higher Court’s findings. As regards the question of the impartiality of the judges, the court found that this had been adequately addressed by the second-instance court. In the Supreme Court’s view, informal communication between the presiding judge and one of the parties could not in itself amount to unacceptable influence on the judge’s impartiality. Noting that nothing in the email (see paragraph 12 above) indicated inappropriate conduct on the part of the judge, that the email was a one-way communication and was available to the parties and thus had not been concealed, the court found that doubts about the judge’s impartiality were not justified. As regards the examination of witness Mi.S. (see paragraph 16 above), the court noted that Judge Z.R. had acted in line with his duty to ensure that the truth be ascertained. The statement he had given after the examination had been meant only to explain the circumstances of the case to the competent Italian judicial authorities. His statement that the indictment was “final and completely provable” could not be understood as anything other than his indication of the existence of a final indictment based on evidence which, according to the standard of proof in Slovenian law, reasonably substantiated the suspicion (utemeljujejo sum) that the alleged criminal offence had been committed. The court thus found unsubstantiated the appellants’ allegation that this had reflected the judge’s opinion that the charges had already been proved.
4.  Constitutional complaint
35.  The applicant subsequently lodged a constitutional complaint.
36.  On 28 January 2013 the Constitutional Court decided not to accept the applicant’s constitutional complaint for consideration. This decision was served on the applicant on 4 February 2013.
B.  Relevant domestic law and practice
37.  Pursuant to the relevant provisions of the Criminal Procedure Act (Official Gazette no. 63/1994 with the relevant amendments), it is the duty of the president of the panel to direct the proceedings, decide on procedural matters and maintain order in the courtroom. He or she is also responsible for ensuring that all elements of the indictment are sufficiently clarified for the truth to be established and that the proceedings are not unnecessarily delayed.
38.  Section 39 of the Criminal Procedure Act contains an exhaustive list of grounds, set out in points 1 to 5, which are formulated as irrefutable presumptions of lack of impartiality, and a general clause stipulated in point 6, which reads as follows:
“A judge or lay judge may not perform judicial duties:
...
6.  if circumstances exist that give rise to doubts about his impartiality.”
39.  A party who requests that a judge be removed on the basis of point 6 of section 39 must state the specific circumstances which give rise to a reasonable doubt about the judge’s impartiality.
40.  Pursuant to the relevant provisions of the Criminal Procedure Act, a party must request the removal of the judge as soon as he or she learns of the ground for removal, but no later than by the conclusion of the main hearing. A request to remove the judge is decided by the president of the court, who can under certain circumstances be replaced by the vice‑president of the court. Prior to a decision on disqualification being issued, a statement from the judge whose impartiality is challenged must be obtained and other enquiries made if necessary. In certain circumstances a request for removal can be decided by the panel hearing the case.
COMPLAINTS
41.  Referring to certain specific events in the proceedings (see paragraphs 7, 9, 11, 12, 16 and 23 above), the applicant complained under Article 6 of the Convention that Judge Z.R. had lacked impartiality in a subjective as well as an objective sense and had shown himself to have been convinced of the applicant’s guilt before it was proven in the proceedings.
42.  The applicant also submitted the following complaints under Article 6 of the Convention:
i) the amendment of the bill of indictment (see paragraphs 26 to 28 above) had infringed his defence rights.
ii) he had not been given a chance to have all his evidence examined and to prove that the allegedly incriminating evidence, in particular the telephone conversations, in fact concerned an entirely different context, namely lawful business activities. In this connection he challenged, in particular, the dismissal of his request for evidence to prove that he had not stored drugs in his shop, such as questioning inspectors who had carried out inspections there, his request to obtain information from the Ministry of Interior concerning ownership of a certain car which he had alleged he did not own, his request to examine witness I.K., his request to examine certain evidence relating to the sale of a certain property in Kosovo, his request to examine witnesses B.B., M.R. and D.P. (see paragraphs 24, 25 and 28 above) In his view, these requests had been arbitrarily dismissed and as regards B.B., the court had made no effort to ensure his examination by the applicant.
iii) the domestic courts’ decisions, including the judgment convicting the applicant, were unsubstantiated and some conclusions conflicted with the evidence in the file.
iv) certain evidence had been gathered unlawfully; in particular the first‑instance court should not have relied on the statements D.S.O. had given in his own defence in the criminal proceedings, which had taken place in Italy without the participation of the applicant (see paragraph 7 above).
v) his request to appoint an Albanian language expert to give an opinion on the meaning of the word “mekš” in one of the Albanian dialects had been unfairly rejected (see paragraph 22 above).
THE LAW
A.  Complaint under Article 6 § 1 of the Convention as regards the impartiality of judge Z.R.
43.  The applicant complained that Judge Z.R. had lacked impartiality in breach of Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”
1.  The parties’ submissions
(a) The Government
44.  The Government argued that the complaint relating to Judge Z.R.’s alleged statement cited in paragraph 23 above did not comply with the requirement of the exhaustion of domestic remedies because neither the applicant’s counsel nor any other counsel had requested that Judge Z.R. be disqualified on that basis. They should have done so during the hearing or reasonably soon afterwards (see paragraph 40 above).
45.  As to the substance of the complaint, the Government agreed with the findings of the domestic courts. None of Judge Z.R.’s statements had shown personal indignation, exasperation or other personal circumstance which could raise any doubts about his subjective impartiality. As regards the State prosecutor’s email (see paragraph 12 above), Judge Z.R. had played no active role in it. As regards his statement that the indictment was provable (see paragraph 16 above), the adjective provable meant, according to the Slovenian official glossary, “capable of being proven” (ki se da dokazati) and therefore did not indicate a personal conviction of guilt.
46.  The Government stressed that the proceedings had been extremely challenging and that Judge Z.R., who had been one of a five-member panel, had been under a duty to maintain order and respect in the courtroom. The file and the evidence had run to approximately thirty thousand sheets and showed that Judge Z.R. had conducted the proceedings in a professional manner and had respected the principle of the equality of the parties. The defence lawyers, on the other hand, had often exhibited a disrespectful attitude and taken steps to delay the proceedings.
47.  The Government pointed out that during the proceedings none of the defendants had requested that any remark as regards the conduct of the proceedings by Judge Z.R. be noted in the records. They further pointed out that Judge Z.R. had not said that the co-defendant should be brought up to the court if need be “tied up like a salami” (see paragraph 11 above) and submitted that that complaint was therefore unsubstantiated.
(b) The applicant
48.  The applicant argued that he had invoked the complaint of impartiality in all his appeals to the courts and that the higher courts had not considered it inadmissible because of his failure to lodge a request for the judge’s removal.
49.  As regards the substance of the complaint, the applicant argued that Judge Z.R.’s comments as to whether counsel should be allowed to express his opinion on the right to appeal had raised justifiable doubts about his impartiality and could have a chilling effect (see paragraph 7 above). The applicant was further critical of Judge Z.R.’s lack of readiness to reschedule hearings (see paragraph 9 above), submitting that he had authorised the whole law firm to represent him, but not all the lawyers in that firm could be acquainted with his case. As regards the alleged remark that the co‑defendant should be brought up to the court if need be “tied up like a salami” (see paragraph 11 above), the applicant argued that all those present at the hearing had heard it.
50.  As regards the State prosecutor’s email (see paragraph 12 above), the applicant argued that the State prosecutor had not been using polite or formal language and that the email was clearly a reply to a previous email. By not responding to such correspondence, which he had clearly read since he had put a copy in the file, Judge Z.R. had allowed such conduct. Informal discussion about pending proceedings could not be considered acceptable and raised doubts about Judge Z.R.’s impartiality.
51.  The applicant also maintained that the absence of counsel at the examination of witness Mi.S. (see paragraph 16 above) did not absolve Judge Z.R. from acting impartially. He pointed out that Judge Z.R. had not disputed the statements complained of. It followed from those statements that he had talked about the provability of the charges and had put pressure on the witness so that the latter would give testimony incriminating the defendants. Judge Z.R.’s opinion that the witness was protecting the defendants by refusing to answer questions also indicated that he had already formed an opinion on evidence to the defendants’ detriment. Moreover, Judge Z.R.’s statement “I will do anything to ensure that you will be punished with the maximum available penalty in Italy as well as in Slovenia” displayed very personal determination on the part of the judge.
2.  The Court’s assessment
52.  The Court does not find it necessary to examine the Government’s objection of non-exhaustion of domestic remedies (see paragraph 44 above), because this complaint is in any event inadmissible for the following reasons.
53.  The Court notes that the applicant did not allege any functional reasons for Judge Z.R. to lack impartiality, but argued that his alleged negative and prejudiced attitude towards the defendants, including the applicant, had impaired his impartiality in the subjective and objective sense (see paragraph 41 above). In this connection the Court refers to the principles guiding its assessment as reiterated in Otegi Mondragon v. Spain, (nos. 4184/15 and 4 others, §§ 52-57, 6 November 2018). It notes in particular that, as to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary. As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (ibid., § 53). According to the objective test, the Court must ascertain whether the tribunal offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (ibid., § 52). The Court further notes that there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (ibid., § 54).
54.  Turning to the present case, the applicant referred to a number of incidents which in his opinion had indicated lack of impartiality on the part of Judge Z.R. The Court notes that those incidents concern Judge Z.R.’s conduct during the criminal trial against the applicant and a number of co‑defendants who were accused, and ultimately convicted, of participating in a large-scale cross-border drug trafficking operation (see paragraphs 5 and 29 above). Judge Z.R. had had the role of presiding judge responsible for, inter alia, directing the proceedings, making procedural decisions, maintaining order and ensuring that all elements of the indictment are sufficiently clarified for the truth to be established and that the proceedings are not unnecessarily delayed (see paragraphs 6 and 37 above).
55.  The Court will now proceed to examine the incidents relied on by the applicant, bearing in mind that the existence of a legitimate reason to fear that a particular judge lacks impartiality is to be assessed against the particular circumstances of each case and in the light of the sufficiency of the safeguards offered by the national procedures for ensuring impartiality (see Upīte v. Latvia, no. 7636/08, § 34, 1 September 2016, with reference to Micallef v. Malta [GC], no. 17056/06, § 99, ECHR 2009).
56.  Regarding Judge Z.R.’s alleged statement that one of the applicant’s co-defendants should be brought to the court if need be “tied up like a salami” (see paragraph 11 above), the Court notes that there is no record of this statement or of any complaint or remark made in this regard. Therefore, and as the Government disputed that fact (see paragraph 47 above), it cannot be considered as established.
57.  As regards Judge Z.R.’s comment with regard to counsel for the applicant’s statement at the hearing concerning the availability of an appeal (see paragraph 7 above), the Court notes that while it was expressed in a colloquial tone, the comment was directed at counsel in relation to his behaviour. Judge Z.R.’s alleged remark that it was inconceivable what rights defence counsel had in Slovenia (see paragraph 23 above) likewise concerned the applicant’s counsel and defence rights in general, not the applicant in particular. While the appropriateness of those remarks might be questioned, they are not such as to show that Judge Z.R. was biased. The Court notes that the applicant’s counsel did not request the removal of Judge Z.R. on account of the latter remark (see paragraph 23 above), which is a strong indication that the defence did not in fact consider it capable of jeopardising the impartiality of the trial process.
58.  As regards Judge Z.R.’s rescheduling of a hearing (see paragraph 9 above), the Court fails to see how this could justify any doubts about his impartiality, as convincingly explained by the panel in its decision dismissing the applicant’s request for the judge’s removal (ibid.).
59.  The Court next addresses the issue of the email Judge Z.R. received from the State prosecutor (see paragraph 12 above). It observes that, in so far as Judge Z.R.’s integrity is concerned, there is no indication that he himself engaged in ex parte communication beyond timetabling and administrative matters. Having regard also to the findings of the vice‑president of the Ljubljana District Court, who, having due regard to the principle of impartiality, examined the request for the judge’s removal (see paragraph 15 above), the Court finds no indication that the email led to or created an impression of an advantage being gained by the prosecution. Moreover, Judge Z.R. included a print-out of the email, in so far as he considered it relevant, in the case file (see paragraph 13 above) and thereby made it available to the other parties to the proceedings. The Court also notes that this issue was subsequently examined by the Ljubljana Higher Court and Supreme Court, which both gave a reasoned opinion on the matter and found no indication of a lack of impartiality on the part of Judge Z.R. (see paragraphs 32 and 34 above). In view of the above considerations, the Court sees no reason to disagree with their finding.
60.  It remains for the Court to address the complaint concerning Judge Z.R.’s conduct during the witness examination in Italy (see paragraph 16 above). In this respect, it observes that Judge Z.R., concerned about the witness’s reluctance to cooperate, repeatedly asked him about the threats he had allegedly received and at one point accused him of protecting the people who had threatened him. He also remarked: “I will do anything to ensure that you will be punished with the maximum available penalty”, which appears to have been directed at the witness. At the end of the witness examination, Judge Z.R. asked for a statement to be recorded. In that statement Judge Z.R. pointed out that the proceedings were “already at the stage of indictment, which [was] final and totally provable”. When he mentioned in his statement that certain people were being protected by the witness, this could, given the context, possibly be understood as referring to the defendants, including the applicant (see also paragraph 19 above).
61.  As regards the circumstances in which the above remarks were made (see, mutatis mutandis, Kriegisch v. Germany (dec.), no. 21698/06, 23 November 2010, and Daktaras v. Lithuania, no. 42095/98, § 43, ECHR 2000‑X), the Court notes that the content of the record was disputed by Judge Z.R., who alleged that it was in fact a short summary of a ninety‑minute examination in which the witness had said, inter alia, that he feared that the defendants would kill his family (see paragraphs 19 and 20 above). The Court observes that it does indeed appear to be undisputed that the witness in question refused to testify, alleging that he was intimidated by the defendants, and that the impugned remarks were expressed by Judge Z.R. with the aim of obtaining the witness’s testimony. However, the Court does not find these remarks to be of such a nature as to objectively justify fears the applicant may have had as to Judge Z.R.’s impartiality. It points out that this question was also considered by the Ljubljana Higher Court and the Supreme Court, which both found that the judge’s conduct had not exceeded the proper bounds (see paragraphs 32 and 34 above). The applicant argued that the judge’s statements displayed a very personal commitment on his part and that he had put pressure on the witness in order to obtain incriminating evidence (see paragraph 51 above). The Court is not persuaded, however, that Judge Z.R.’s conduct in this case was prejudicial or that it exceeded the proper scope of judicial questioning.
62.  As regards the allegation that Judge Z.R. had given the impression that he had formed an opinion on the case before all the evidence had been presented, the Court notes that the use of the expression “totally provable” with regard to the indictment is unfortunate (compare Daktaras, cited above, § 44, and Reeves v. Norway (dec.), no. 4248/02, 8 July 2004). However, it has to be seen in context. Judge Z.R. attempted to explain the stage of the proceedings at which the witness hearing had been conducted ‑ that is, the stage after the final indictment. Judge Z.R. used the term “provable” rather than “proved”, which the higher courts, which are indeed better placed than this Court to assess matters of language and interpretation of domestic legal standards, considered to refer to the reasonable suspicion that a criminal offence had been committed and not to a conviction as to the defendant’s guilt (see paragraphs 32 and 34 above). The Court, finding no reason to question the domestic courts’ interpretation and conclusion, also notes that this expression was not used in a communication with the public (see, conversely, Olujić v. Croatia, no. 22330/05, § 65, 5 February 2009), but in a statement which appears to have been intended to assist the Italian authorities in the event that proceedings were to be brought against the witness for his refusal to testify.
63.  Lastly, the Court takes note of the safeguards which were in place. The defendants had the possibility of challenging the judge’s impartiality by lodging a request for his removal with the vice-president of the court. However, the applicant did not avail himself of that option except when he challenged the judge’s comment regarding his counsel’s statement at the hearing concerning the availability of an appeal (see paragraph 7 above) and the rescheduling of a hearing (see paragraph 9 above). Be that as it may, the panel and the vice-president of the Ljubljana District Court duly examined the repeated challenges to Judge Z.R.’ impartiality, most of which were made by the applicant’s co-defendants (see paragraphs 8, 9, 15 and 21 above). Moreover, the Ljubljana Higher Court and the Supreme Court both considered the complaints concerning Judge Z.R.’s conduct in their review of the applicant’s conviction and their findings were reasoned and based on proper legal grounds (see paragraphs 32 and 34 above; see also, mutatis mutandis, Upīte, cited above, § 36, and, by contrast, Harabin v. Slovakia, no. 58688/11, §§ 136-42, 20 November 2012).
64.  Consequently, the Court finds that the applicant’s misgivings about the impartiality of the Judge Z.R. are not objectively justified and do not disclose any 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.
B.  Complaint under Article 6 § 2 of the Convention
65.  The applicant complained, in substance, of a violation of the presumption of innocence in breach of Article 6 § 2 of the Convention, which reads as follows:
“2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
1.  The parties’ submissions
66.  The applicant argued that Judge Z.R.’s conduct during the examination of witness Mi.S. (see paragraph 16 above) revealed his conviction that the applicant was guilty. In his submission, the fact that that incident was followed by thirty‑five hearings only showed how early in the proceedings the judge had already formed and expressed his belief that the defendants were guilty. The applicant also argued that Judge Z.R., as the president of the panel deciding the particular case under consideration, should have been subject to particularly strict scrutiny.
67.  Relying on the arguments summarised in paragraphs 44 to 47 above, the Government raised an objection of non-exhaustion of domestic remedies and argued that the presumption of innocence had been respected in the present case.
2.  The Court’s assessment
68.  As regards the Government’s objection on grounds of non‑exhaustion of domestic remedies (see paragraphs 44 and 67 above), the Court does not find it necessary to examine it because this complaint is in any event inadmissible for the following reasons.
69.  The Court reiterates that the presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1. In its relevant aspect it is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. It prohibits, inter alia, the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law (see Khuzhin and Others v. Russia, no. 13470/02, § 93, 23 October 2008). The Court also recalls that a distinction should be drawn between decisions or statements which describe a “state of suspicion” and decisions or statements which contain a “finding of guilt”; only the second category is incompatible with Article 6 § 2 of the Convention (see, amongst many other authorities, Marziano v. Italy, no. 45313/99, § 31, 28 November 2002; Del Latte v. the Netherlands, no. 44760/98, § 31, 9 November 2004; and Allen v. the United Kingdom [GC], no. 25424/09, § 121, ECHR 2013).
70.  The Court notes that it has examined Judge Z.R.’s conduct during the examination of witness Mi.S. under Article 6 § 1 of the Convention and has found no reason to question the domestic courts’ conclusion that his statements did not amount to a premature expression of his opinion as to the applicant’s guilt (see paragraphs 60 to 62 above). This conclusion is equally valid in the context of Article 6 § 2 (see, mutatis mutandis, Daktaras, cited above, § 44, and Reeves, decision cited above).
71.  It follows that this complaint must be rejected as manifestly ill‑founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
C.  The remaining complaints
72.  In addition to the above complaints, the applicant raised a number of other complaints under Article 6, which were not communicated to the Government (see paragraph 42 above). The Court considers, in the light of all the material in its possession, that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto and that the admissibility criteria set out in Articles 34 and 35 of the Convention have therefore not been met.
73.  It follows that these complaints 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 27 June 2019.
Andrea Tamietti Paul Lemmens
Deputy RegistrarPresident
 

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