CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 février 2024

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margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s68D1564D { width:34.89pt; display:inline-block } .sEEEC397 { width:146.09pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } FIRST SECTION CASE OF ŠKOBERNE v. SLOVENIA (Application no. 19920/20)   JUDGMENT   Art 6 § 1 (criminal) and Art 6 § 3 (d) • Fair hearing • Trial judge’s refusal of applicant’s request to examine two co-defendants as witnesses following their admission of guilt rendered trial proceedings unfair • Request for examination of co-defendants essentially meant to support the applicant’s defence, sufficiently founded and relevant to the subject-matter of the accusations against him • Co-defendants’ testimony could be considered as being capable of influencing the outcome of the trial or strengthening the position of the defence • Applicant deprived of the opportunity to effectively adduce and thus rely on witness evidence in arguing his case • Domestic courts’ failure to provide sufficient reasons for refusal and redress resulting shortcomings Art 8 • Private life • Correspondence • Applicant’s telecommunications data (traffic and location data) retained by telecommunications providers for statutory period of 14 months for different public interest purposes, accessed by law-enforcement authorities and used in criminal proceedings against him • Systemic surveillance entailed by the mandatory retention of telecommunications data presented an impediment to the enjoyment of privacy rights of all users of telecommunication services • Interference constituted by data retention of a serious nature requiring the Court to exercise stricter scrutiny in assessing the question of fair balance • Absence of provisions or mechanisms aimed at ensuring impugned retention measure limited to what was “necessary in a democratic society” to achieve specific purposes listed in the relevant domestic law • Applicant’s data at the time retained in a systemic, general and indiscriminate manner • Retention regime irreconcilable with State’s Art 8 obligations; access to and use of such data likewise noncompliant with that provision   Prepared by the Registry. Does not bind the Court.   STRASBOURG 15 February 2024   FINAL   15/05/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Škoberne v. Slovenia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Alena Poláčková , President ,   Marko Bošnjak,   Lətif Hüseynov,   Péter Paczolay,   Ivana Jelić,   Erik Wennerström,   Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   19920/20) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Milko Škoberne (“the applicant”), on 21 April 2020; the decision to give notice to the Slovenian Government (“the Government”) of the complaints concerning Article 6 (with respect to the trial judge’s impartiality and her refusal to allow the examination of E.R. and M.S. as witnesses at the applicant’s trial) and Article 8 of the Convention and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 23 January 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns criminal proceedings against the applicant (a former district court judge) in which he was convicted of accepting bribes by a judge who had previously accepted the admission of guilt made by his two co ‑ defendants. The applicant was denied the possibility to examine those co ‑ defendants as witnesses following their admission of guilt. The case also concerns a question whether Article 8 was breached because the applicant’s traffic and location data was – as part of a systemic measure – retained for a period of 14 months and used by the authorities in the proceedings against him. THE FACTS 2.     The applicant was born in 1959 and lives in Laško. The applicant was represented by Mr V. Cugmas, a lawyer practising in the town of Slovenske Konjice. 3.     The Government were represented by their Agent, Mrs A. Grum, Senior State Attorney. 4.     The facts of the case may be summarised as follows. Events leading to the criminal proceedings against the applicant 5 .     E.Ć. was convicted in 2001 before Celje District Court for the criminal offence of fraud and sentenced to imprisonment for two years. He then left the territory of Slovenia before his prison sentence had begun; an international arrest warrant against him was issued on 12 December 2007 (“the 2007 arrest warrant”). On 5 November 2008 the enforcement of the sentence became statute-barred. On that day the 2007 arrest warrant was revoked. 6 .     Simultaneously, another set of criminal proceedings against E.Ć. took place before the Celje District Court concerning a prostitution-related crime. His detention was ordered on 3 December 2003. On 28 May 2009 the Celje District Court issued an international arrest warrant against E.Ć. (“the 2009 arrest warrant”). 7 .     On 10 October 2009 E.Ć. was detained on the basis of the 2009 arrest warrant by the Croatian enforcement authorities when he tried to cross the border from Croatia to Bosnia and Herzegovina. However, he was quickly thereafter released. The applicant was on that day serving as an on-duty investigating judge at the Celje District Court. 8 .     In April 2010 E.Ć. lodged with the Celje District Court written submissions requesting that certain evidence be removed from the case file and that the criminal proceedings against him be suspended. 9 .     On 12 November 2010, at E.Ć.’s written request (which was supported by a statement given by him and by certain medical certificates relating to the health of the woman who, he asserted, was his partner), an out-of-court panel of three judges – which was chaired by the applicant – decided to suspend E.Ć.’s detention. On the same day, the applicant issued a decision revoking the 2009 arrest warrant issued against E.Ć. 10 .     On 29 November 2010 E.Ć. lodged via email a criminal complaint against the applicant with the police. He lodged another complaint (providing further details) orally at a police station on 14 December 2010. He alleged that the applicant (with the assistance of two intermediaries – M.S. and E.R.) had committed the criminal offence of accepting a bribe, describing the events as follows. Following arrangements made by E.R. and M.S., he had met with the applicant, who had declared himself to be potentially willing to help him in respect of the proceedings pending against him and in respect of the related arrest warrants (see paragraphs 5 and 6 above). After the first meeting (which had been held in Croatia at the end of 2008 or the beginning of 2009, and at which the applicant had promised to look into the matter), E.Ć. had met the applicant again in the spring of 2009. E.R. and M.S. had also been present. At that meeting the applicant had informed E.Ć. that the 2007 arrest warrant had been revoked (see paragraph 5 above) but that a new arrest warrant (that is, the 2009 arrest warrant – see paragraph 6 above) had been issued against him; the applicant had then demanded payment for his favours. E.Ć. had given 5,000 euros (EUR) to E.R. (to be handed on to the applicant). A third meeting had been held in the summer of 2009, involving the same persons as before. E.Ć. had given EUR 4,000 to E.R. (to be handed on to the applicant). The applicant had prepared a written submission (which E.Ć. had then lodged with the Celje District Court – see paragraph 8 above) and had promised to try to have E.Ć.’s case transferred to himself. Following the suspension of E.Ć.’s detention and the revocation of the 2009 arrest warrant (see paragraph 9 above), the applicant had demanded a further EUR   50,000 for his favours and had threatened that otherwise a new arrest warrant would be issued against E.Ć. 11.     Together with his criminal complaint, E.Ć. submitted to the police several items of evidence and provided details concerning the telephone numbers used for communication between the participants during the above ‑ noted events. Data-gathering, surveiLlance and undercover operation 12 .     On 16 December 2010 the Ljubljana District Court ordered the relevant telecommunications service providers to provide traffic and location data and related subscriber data (hereinafter “telecommunications data”) in respect of the telephone numbers that had been used by, inter alia , E.Ć. and E.R. concerning the period of 1 January 2009 to 16 December 2010. Based on the data received from the telecommunications service providers (see paragraph 17 below) the police, on 18 December 2010, prepared an analytical report establishing, inter alia , that E.R. during the period in question had engaged in communication with a person using a mobile telephone number belonging to the Celje District Court. On 20 December 2010 the police prepared a second analytical report on the basis of the same order; that report set out the telecommunications data detailing communication between E.R.’s and M.S.’s respective telephone numbers. 13 .     On 18 December 2010 the Ljubljana District Court ordered a measure of surveillance of telecommunications ( nadzor telekomunikacij ) – namely, it ordered the wiretapping of several telephone numbers used by E.R. and the recording of communication obtained thereby. 14 .     On 23 December 2010 the Ljubljana District Court ordered the relevant telecommunications service providers to provide it with the telecommunications data in respect of telephone numbers used by, inter alia , E.R. and M.S. concerning the period of 1 January 2009 to 22 December 2010. Based on the data received from the telecommunications service providers (see paragraph 17 below) pursuant to the Ljubljana District Court’s orders of 16 December and 23 December 2010 the police prepared a third analytical report on 27 December 2010. That report set out the telecommunications data relating to E.R. and M.S. and a mobile telephone number that belonged to the Celje District Court. 15 .     On 27 December 2010 the Ljubljana District Court ordered a measure of surveillance of telecommunications – namely, it ordered the wiretapping of the mobile telephone number of the Celje District Court (which was used by the applicant) and of a landline telephone number owned and used by the applicant, and the recording of communication obtained thereby. 16 .     On 12 January 2011 the Ljubljana District Court ordered telecommunications service providers to provide telecommunications data in respect of a mobile telephone number that belonged to the Celje District Court and was used by the applicant. On 17 January 2011 the police prepared a fourth analytical report on the basis of the data supplied by the telecommunications service providers (see paragraph 17 below) pursuant to the Ljubljana District Court’s orders of 16 December, 23 December 2010 and 12 January 2011. That report set out, inter alia , the telecommunications data relating to the traffic between the telephones used by the applicant, E.R. and M.S. 17 .     In reply to the above-mentioned orders issued by the Ljubljana District Court for the telecommunications service providers to yield the requested telecommunications data, the telecommunications service providers explained that they could not provide the solicited information in respect of the entire period but only in respect of the previous fourteen months – the minimum storage period provided by the relevant legislation. 18 .     During and after the period during which the above-mentioned activities took place, an undercover operation was set up (in cooperation with E.Ć.). An undercover police officer and E.Ć. engaged in operations that were targeted at E.R., M.S. and the applicant until 18 February 2011. E.Ć. engaged in communication and participated in meetings held in Slovenia with the aforementioned persons. On 24 January 2011, he delivered to E.R. and M.S. banknotes (whose serial numbers had been recorded) in the amount of EUR   18,000. During subsequent house searches, some of those banknotes were recovered at premises of E.R. and M.S.; on 25 January 2011 the applicant deposited in a bank cash (in the amount of EUR 8,000) comprising more of the above-mentioned banknotes. During the search of the applicant’s house, his IT equipment was seized. Documents containing the submissions lodged with the Celje District Court by E.Ć. in April 2010 (see paragraph 8 above) were found on the hard disk of his computer. 19.     The applicant, E.R. and M.S. were arrested on 26 January 2011. Criminal investigation led by the investigating judge 20.     On 28 January 2011 the applicant, E.R. and M.S. appeared before the investigating judge. The applicant declined to give any statement. E.R. remained silent. M.S. gave a statement in the presence of his lawyer. 21 .     In his statement, M.S. said that in 2009 E.R. had asked him if he had known a legal expert who could help his acquaintance – E.Ć. – with certain legal issues. M.S. had known the applicant because they had been school friends, so he had given E.R. his telephone number. E.R. had then contacted the applicant directly. M.S. acknowledged having met E.Ć., E.R. and the applicant in Croatia as well as having received, on the day of the incident at the border crossing (see paragraph 7 above), a telephone call from E.Ć. during which the latter had asked how he could reach the applicant and had referred to certain complications that he was experiencing at a border crossing. He further explained that on 24 January 2011 (see paragraph 18 above) he, E.R. and E.Ć. had met up. He had received from E.Ć. an envelope containing EUR   18,000 in cash and had then divided that cash between three envelopes (two containing EUR 5,000 and one containing the amount of EUR 8,000). Later that day, he had met the applicant and handed to him the envelope containing EUR 8,000. Together with the applicant, he had then met E.R. and E.Ć. in a hotel in the same town. They had discussed the fact that the hearing in respect of E.Ć.’s case (see paragraph 6 above) had been postponed owing to the illness of the judge or the prosecutor. When leaving the hotel, M.S. had given one of the envelopes containing EUR 5,000 to E.R. 22 .     On 3 February 2011, the investigating judge opened an investigation against the applicant, E.R. and M.S. During the investigation E.Ć. was interviewed as a witness. 23 .     On 10 January 2012 the State Prosecutor’s Office filed a bill of indictment against the applicant, E.R. and M.S. for committing the criminal offence of accepting bribes. Requests lodged by the applicant for the exclusion of certain evidence, as well as the objections lodged by the applicant, E.R. and M.S. against the indictment, were dismissed. In lodging those requests and complaints, the applicant did not refer to the storage of telecommunications data by the telecommunications service providers in question and the use of such data as evidence.   Trial before the Ljubljana District Court 24 .     On 22 November and 20 December 2012, the Ljubljana District Court, sitting as a single judge (Judge V.L.), held pre-trial hearings of the applicant, E.R. and M.S., respectively. Their lawyers lodged requests for the exclusion of certain evidence but did not question the lawfulness of the data storage by telecommunication service providers. 25 .     On 14 February 2013 the trial commenced before Judge V.L. of the Ljubljana District Court. At the first hearing, the applicant stated that he would provide a defence statement – but only at a later stage of the proceedings. M.S. also stated that he would defend himself later. E.R. likewise did not defend himself. The court read out the statement that M.S. had given during the investigation (see paragraph 21 above). The applicant then commented on that statement. He argued that M.S. had not been asked whether the applicant had known of the demands made on his behalf, and had not been questioned as to why he had given the applicant EUR 8,000. The applicant also alleged that no enquiries had been made with M.S. as to whether he and the applicant had been involved in some other kind of relationship or business. 26 .     A number of further hearings were held between 21 February 2013 and 5 December 2013, during which extensive evidence was taken – including the playing of wiretap recordings and the examination of several witnesses who had been involved directly or indirectly in the events in question. E.Ć. was also examined as a witness, and (as had not been the case during his previous submissions during the criminal-complaint proceedings and investigation) he now testified that the money – which he had given to E.R. and which the latter had said he had passed on to the applicant – had been meant as a payment for legal services and not as a bribe. He said that he had also given that information to the police when lodging his criminal complaint on 14 December 2010 (see paragraph 10 above), but that it had been left out of the record thereof. He also gave his account of the events on the Croatian-Bosnian border (see paragraph 7 above), stating, inter alia , that he had shown the border guards a document concerning the (revoked) 2007 arrest warrant, which had been given to him by the applicant, but that that had not yielded the desired results – prompting his partner to then call E.R. Thirty or forty minutes later he had been released. E.Ć. also submitted that E.R. had on the day after the incident told him that he had been lucky that the applicant had been on duty that day and that he had been able to “save” him. He further testified that after the 2009 arrest warrant had been revoked and the detention order suspended, E.R. had demanded a payment of EUR   50,000; E.R. had reduced his demand to EUR 40,000 following negotiations involving M.S. He further described his subsequent cooperation with the police. The police had tasked him with negotiating the payment and had instructed him to hand over the agreed sum of money on condition that the applicant agreed to meeting him. He had paid the sum and on the evening of the same day he had met with the applicant, together with M.S. and E.R. (see paragraph 18 above). During his examination, E.Ć. also replied to questions posed by the applicant or his representative. He said that the money (EUR 9,000) which he had given to E.R. and which the latter had said that he had handed on to the applicant had been – in his understanding – intended as payment for legal services or for “lawyers”. He also testified that he had several times turned to the applicant, via M.S. and E.R., for advice regarding the proceedings pending against him. 27 .     At a hearing on 11 December 2013 M.S. and E.R. pleaded guilty to the charges. Judge V.L. accepted their admission of guilt and accordingly found them guilty (see paragraph 35 below). Tһе applicant then lodged an application seeking the recusal of Judge V.L. on the grounds that there were doubts concerning her impartiality. The president of the Ljubljana District Court dismissed the applicant’s application. He noted that the Criminal Procedure Act (hereinafter “the CPA”) did not provide that a judge should step down in the event that he or she accepted the co-defendants’ admission of guilt. Rather, the CPA only provided (in its section 39(2)(3) – see paragraph 56 below) that a judge or a juror could not adjudicate an indictment, appeal or extraordinary legal remedy if he or she had delivered a decision rejecting a defendant’s admission of guilt or an agreement concerning a defendant’s admission of guilt. Pursuant to the presumption of innocence, the court in question had to determine guilt separately for each defendant. He further explained that for the recusal of a judge on the basis of section 39(1)(6) of the CPA (see paragraph 56 below), there should be circumstances raising doubts about the judge’s impartiality. 28 .     On 13 December 2013 the court disjoined the proceedings against E.R. and M.S. from those against the applicant (see paragraphs 35-36 below). 29 .     At the hearing on 13 and 19 December 2013, the applicant gave defence statements. The applicant explained that he had met E.Ć. for the first time in Croatia on 17 November 2008 at the initiative of M.S., who had been a school friend of the applicant. He confirmed that when the meeting had been held he had been aware that criminal proceedings against E.Ć. had been pending. According to the applicant, E.R. (whom the applicant had not known) had also been present at the meeting as a long-time friend of E.Ć. He further stated that he had explained to E.Ć. that he was entitled to the services of a state-appointed lawyer but that if he was not satisfied with that lawyer, he could choose his own (however, he would have to pay for the services of the lawyer of his own choice). The applicant stated that the subject of money had not been discussed – either then or later. In respect of a further meeting that he had had with E.Ć., M.S. and E.R., the applicant stated that M.S. had done most of the talking. The applicant submitted that M.S. had asked what he would have done if he had been the judge in E.Ć.’s case. The applicant said that he had replied that he would have probably suspended the proceedings but that he could not take over E.Ć.’s case because he had been involved at an earlier stage and that for the case to be reallocated, certain conditions would have to be met. 30 .     With regard to the event that had taken place on 10 October 2009 at the border crossing between Croatia and Bosnia and Hercegovina (see paragraph 7 above), the applicant stated that M.S. had told him that E.Ć. had been “detained at a border crossing between Bosnia and Croatia” and had later telephoned again to say that he had been released. According to the applicant, when he had told M.S. that he had been on duty on the day in question M.S. had replied: “You must have sorted it out because you [were] on duty.” The applicant stated that that information had obviously been passed on to E.Ć. 31 .     With regard to money, the applicant stated that he had not received the EUR 9,000 that had been handed over to E.Ć. There had been no talk of money at the meetings. Regarding his receipt of the above-mentioned sum of EUR 8,000, the applicant stated that that money had been given to him in repayment of money that he had loaned to M.S. in July 2010. 32 .     At the hearing on 19 December 2013 the applicant’s lawyer requested that E.R. and M.S. be examined. He argued, inter alia , that M.S. could provide information concerning the alleged loan that the applicant had mentioned in his defence statement, and that E.R. could testify in respect of E.Ć.’s alleged debts to him. Moreover, the applicant’s lawyer submitted that E.R. and M.S. had not told the applicant that they had requested money on his behalf and should explain the circumstances surrounding the question of that money, what had happened to the initial EUR 9,000, and how and why the sum of EUR 18,000 had been divided. The applicant’s lawyer also pointed out that E.R. and M.S. were no longer co-defendants in the same proceedings and could therefore be examined as witnesses in the proceedings against the applicant. According to the applicant’s lawyer, following their admission of guilt and their conviction, E.R. and M.S. had become incriminating witnesses (that is, witnesses testifying against the accused); the applicant was unable to put questions to M.S. (who had given incriminating testimony against the applicant and had later decided to not defend himself) or to examine E.R. (who was absent). 33 .     At the hearing on 19 December 2013 Judge V.L. refused the request lodged by the applicant’s lawyer that the examination of E.R. and M.S. be permitted; the judge reasoned that both persons still had the status of defendants because the judgment against them had not yet become final. She stated that sufficient evidence had been presented to allow a decision to be delivered in respect of the charges against the applicant. She added that it was impossible to clarify with E.R. and M.S. the reason or motive for their respective admissions of guilt because that would have infringed their legal rights. 34 .     The applicant subsequently repeated his request that E.R. and M.S. be examined, arguing that the hearing should be postponed until the judgment against E.R. and M.S. was final and submitting that such an examination would yield the most important evidence for his defence. Judge V.L. again refused the request. In the judgment against the applicant (see paragraph 37 below) she put forward two grounds. Firstly, she held that at the time when the application requesting that E.R. and M.S. be examined had been under consideration, the judgment against E.R. and M.S. had not yet been final, and it had not been certain that it would become final after the expiry of the deadline for declaring an intention to appeal. According to the relevant domestic case-law, co-defendants – even when tried in separate proceedings – could not be examined as witnesses in proceedings against other co ‑ defendants, unless the judgment against them was final. Secondly, the judge held that the questioning of co-defendants could not have a decisive effect on its assessment of evidence that had already been examined. She noted that the court had not based its assessment of the evidence presented to it on the fact that E.R. and M.S. had admitted their guilt nor on the statement given by M.S. (which had been read out during the trial). She further noted that even if M.S. had not defended himself before the investigating judge and the admission of guilt by E.R. and M.S. had not been accepted, she would have convicted the applicant on the basis of numerous items of evidence collected independently of the admission of guilt. The judge further noted that the applicant had been able to submit comments regarding the statement (containing some incriminating assertions) given by M.S. during the investigation, and found that the applicant’s late-stage defence was unpersuasive and that he could have submitted relevant evidence at an earlier stage of the proceedings. Judgment against E.R. and M.S. 35 .     On 16 December 2013 Judge V.L. convicted E.R. and M.S. on the basis of their respective admissions of guilt, imposing on them a suspended prison sentence and a fine of approximately EUR 3,000 each. They were found guilty of the continuous offence of accepting a bribe for the purpose of “assisting in the bribery of an official who demanded and accepted a reward for abusing his position”. The judgment further stated that E.R. and M.S. had each assisted in “the bribery of an official, Judge Milka Škoberneta”, and outlined the following acts, by means of which the said criminal offence had been committed: - E.R. and M.S. had arranged three meetings with E.Ć. and the applicant in 2009. - E.R. had demanded and received, in the applicant’s name, EUR 9,000 from E.Ć. - E.R. and M.S. had informed the applicant of the incident at the border crossing involving E.Ć. (see paragraph 7 above), after which the applicant – as the investigating judge on duty at the Celje District Court on the day in question – had interfered by sending a decision revoking the 2007 arrest warrant (which in fact had been irrelevant to the situation in question), thereby securing E.Ć.’s release. - E.R. had intervened in such a way ( posreduje pri ) that the applicant had prepared written submissions for E.Ć. to lodge with the Celje District Court which had been through his facilitation placed in the case file (see paragraph 8 above); moreover, E.R. had transferred to E.Ć. certain submissions prepared by the applicant that had been designed to facilitate the taking of a decision to suspend E.Ć.’s detention and the revocation of the 2009 arrest warrant (see paragraph 9 above); furthermore, E.R. had intervened to ensure that E.Ć. signed the submission and had acquired evidence requested by the applicant (which E.R. had known was misleading in nature). - E.R. and M.S. had demanded EUR 50,000, and later EUR 40,000, from E.Ć. with the aim of obtaining a reward for the applicant and for their assistance, which they had discussed by telephone and at the meetings with E.Ć. (of which they had kept the applicant informed). - E.R. and M.S. had received, for themselves and for the applicant, a bribe from E.Ć. in the amount of EUR 18,000. 36 .     The judgment against M.S. and E.R. had become final on 25   December 2013 after the expiration of an eight-day deadline before which E.R. and M.S. could have (but had not) declared their intention to appeal. Judgments Against the applicant The Ljubljana District Court’s judgment 37 .     On 23 December 2013 Judge V.L. of the Ljubljana District Court, found the applicant guilty of the continuous offence of accepting a bribe (Judge V.L. having deemed that the applicant, as a district judge at the Celje District Court – and thus an official – had demanded and accepted a reward for abusing his position while exercising his official powers). 38 .     Judge V.L. found, i nter alia , that the applicant had: promised E.Ć. that he would try to take over the hearing of his case (see paragraph 6 above) and to terminate the proceedings against him; promised E.Ć. that he would try to have the 2009 arrest warrant (see paragraph 6 above) revoked; prepared the written submissions for E.Ć. that had been lodged in April 2010 (see paragraph 8 above); intervened (in his role as duty investigating judge) to secure E.Ć.’s release at the Croatia-Bosnia border crossing (see paragraph 7 above) by sending a decision – which he had known did not concern the arrest warrant that had served as the grounds for E.Ć.’s detention (the 2009 arrest warrant) but rather concerned the (revoked) 2007 arrest warrant; and presided over the out-of-court panel that had suspended E.Ć.’s detention and had subsequently revoked the arrest warrant on the basis of a written request and other documents that had been prepared on behalf of E.Ć. or been solicited by the applicant (who had known that the information contained therein was inaccurate – see paragraph 9 above). Judge V.L. established that as a reward for the above-noted actions the applicant – with the assistance of E.R. and M.S. and together with them – had demanded and received EUR 9,000 from E.Ć. at some point between November 2008 and June 2009. It further found that the applicant – together with E.R. and M.S. – had subsequently demanded EUR 50,000 or EUR 40,000 at some point between 14   November 2010 and 24 January 2011, of which he – together with E.R. and M.S. – had received EUR 18,000 on 24 January 2011. 39 .     In reaching those findings the court referred to E.Ć.’s statements to the police in which he had described the meetings that had taken place in Croatia; it found those statements to have been corroborated by the statement that M.S. had made during the investigation (see paragraphs 10 and 21 above). It also referred to the telecommunications data that had been provided by the relevant telecommunications service providers and had been analysed by the police (see paragraphs 12, 14 and 16 above) which, in the court’s opinion, had corroborated the evidence given initially by E.Ć. In particular, it referred to the analysis showing that communication had taken place involving E.R., M.S., E.Ć. and the applicant on the day of the above ‑ mentioned incident at the border crossing (see paragraph 7 above) and to the out-of-court panel’s decision regarding E.Ć.’s detention (see paragraph 9 above). As regards the finding that the applicant had promised to tamper with the legal process in respect of E.Ć. (with the expectation of receiving payment by way of reward), the court referred also to the communications recorded by means of wiretapping and to the results of the undercover operation. For instance, in one of the conversations M.S. had been recorded saying that E.Ć. had given EUR 9,000, thinking that the matter had been resolved. During the meeting on 24 January 2011 the applicant had been recorded explaining that he had been on duty on the day of the border crossing incident (see paragraph 7 above) and that he had sent the revoked 2007 arrest warrant. As regards that incident the court also referred to M.S.’s statement (see paragraph 21 above) in which he had said that E.R. had called him that day asking how he could reach the applicant. 40 .     As regards the events following the suspension of E.Ć.’s detention and the revocation of the 2009 arrest warrant (see paragraph 9 above), the court referred to, inter alia , the following evidence. On several occasions M.S. and E.R. had been recorded discussing the progress of the criminal proceedings against E.Ć. (see paragraph 6 above) and their frustrations regarding E.Ć.’s failure to pay the requested sums. They had often mentioned the applicant as someone who had been consulted during or involved in the discussions of E.Ć.’s criminal case. The records of the conversations between E.R. and the applicant showed that E.R. (while at a meeting on 31 December 2010 with E.Ć.) had telephoned the applicant and had informed him that “things [were] moving in a slightly better direction”. The court also referred to a number of recorded conversations between E.R. and E.Ć. in which the former had asked E.Ć. to pay, whereupon the latter (who had been acting as part of the undercover operation) had insisted on a meeting with the applicant. The record of a subsequent conversation that had taken place between M.S. and the applicant on 7 January 2011 showed that M.S. had informed the applicant that “he” had wanted to meet with him, to which the applicant had agreed. At a meeting on 8 January 2011 between E.R., E.Ć. and M.S., the latter had said that the applicant could not meet publicly with the defendants, and that they could not “play” with that. The court referred also to subsequent conversations between the applicant and M.S. in which the latter had been recorded saying that “he” was still bargaining and wanted to meet the applicant and that “he” was softening up. During one of those conversations reference had also been made to events that had occurred during the criminal proceedings that had seemingly related to E.Ć. At the above-mentioned meeting on 24 January 2011 (see paragraph 18 above) the applicant had been recorded saying in response to E.Ć. (who had been explaining the difficulties encountered in collecting the money) that those difficulties were not a problem. As for the division of the money handed over on 24 January 2011, the court referred to M.S.’s statement (see paragraph 21 above) and the record of a conversation between E.R. and M.S. in which the latter had proposed that the money be divided according to the ratio of “5,5,8”. 41 .     In the court’s view, the recorded conversations indicated that the applicant had known of the required payment and its purpose. It thus found the applicant’s statement to the effect that the money received from M.S. had constituted the repayment of a loan (see paragraph 29 above) to have constituted “merely his means of defence”. In that connection, the court also noted that the applicant had failed to convincingly demonstrate how he had obtained the money at the time when he had allegedly given it to M.S. As regards the change to E.Ć.’s testimony, the court noted that his statements at the trial (see paragraph 26 above) had lacked credibility and that he could have been also influenced by threats that he had received during the proceedings. 42 .     The applicant was sentenced to five years and six months in prison and a fine of almost EUR 20,000; he was also ordered to pay EUR 12,000 – a sum that amounted to the pecuniary gain realised from the crime committed. The Ljubljana Higher Court’s judgment 43 .     The applicant appealed against the first-instance court’s judgment on the grounds that E.R. and M.S. had not been examined and that Judge V.L. had not stepped down, despite her having accepted E.R.’s and M.S.’s admissions of guilt. The applicant submitted that he had never demanded or received money from E.Ć., and that by handing him EUR 8,000, M.S. had merely been repaying a loan. He also alleged that the first-instance court, in convicting the applicant and in substantiating orders for obtaining other evidence, had relied on telecommunications data which had been retained under a legal regime which had been declared invalid and which had been in violation of, inter alia , Article 8 of the Convention. In that connection, he relied on the Constitutional Court’s judgment of 3 July 2014 and the judgment delivered by the Court of Justice of the European Union (CJEU) in the case of Digital Rights Ireland and Others (see paragraphs 66-68 and 74-76 below) and pointed out the indiscriminate and general nature of the data-retention regime in question. 44 .     In a judgment of 22 September 2014, the Ljubljana Higher Court dismissed the applicant’s appeal and upheld the findings of the Ljubljana District Court. As concerns the refusal of the request that E.R. and M.S., be examined, the Ljubljana Higher Court found that it was not disputed that E.R. and M.S. could not be examined as witnesses until the moment at which the judgment against them became final. The judgment against the applicant had been delivered before that moment. The Ljubljana Higher Court also held that the applicant had failed to demonstrate with a sufficient degree of probability that any testimony that might have been given by E.R. and M.S. could have undermined the court’s conclusions. With regard to the non-recusal of Judge V.L., the Ljubljana Higher Court held that the CPA did not provide that a judge should be recused in such a (by no means rare) procedural situation. It noted that before accepting the admissions of guilt, the court had had to assess whether the admissions were unambiguous and supported by the evidence in the case file (see paragraph 58 below). 45 .     As regards the gathering of data, the Ljubljana Higher Court noted that the Constitutional Court’s decision had not interfered with section 149.b of the CPA (see paragraph 57 below) and had not instructed that the data that had been in possession of the authorities prior to its delivery be destroyed. Referring to the decision of the Constitutional Court (see paragraphs 66-6