CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 avril 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 25 April 2016   FOURTH SECTION Application no. 776/14 Vesna GYÖRKÖS ŽNIDAR against Slovenia lodged on 19 December 2013 STATEMENT OF FACTS The applicant, Ms Vesna Györkös Žnidar, is a Slovenian national, who was born in 1977 and lives in Maribor. She is a lawyer by profession. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. After a major protest in Maribor on 3 December 2012 ten individuals were charged with the participation in a group obstructing an official in the performance of an official act. While participating in the above-mentioned protest those individuals, allegedly, threw different objects at the police. One of the defendants, X, was represented by the applicant. The criminal proceedings were conducted before the Maribor Local Court sitting in a formation of a single judge. The judge in the case was Judge M. As is apparent from the minutes of the hearing held on 7 February 2013, the applicant requested the disqualification of Judge M. All of the lawyers joined in her motion for disqualification. According to the applicant, after inspecting the case-file she found that the bill of indictment had been amended, and that she had not been informed and was unable to examine the witnesses accordingly. On the same date Judge M. dismissed the request for disqualification on the ground that it had been submitted in order to delay the proceedings. The trial judge pointed out that the District State Prosecutor had only submitted further motions for evidence without extending or changing the charges. Judge M. noted that the lawyers could access the case-file during office hours and, therefore, had the opportunity to familiarise themselves with the documents contained therein. In the further course of proceedings, several more requests were made for Judge M. to withdraw from the proceedings. On 6 May 2013 lawyer O. requested her disqualification. He complained that the trial judge had ordered the security guards to check whether the lawyers’ phones were switched off; she had allocated seats to the defendants in such a way as to create an appearance of conviction in advance; at the hearing of 25   April   2013 Judge M. stated that she would not allow walking about within the courtroom during the hearing; and on the same date she did not permit lawyer L. to put a question to a witness. O. further maintained that the hearing should be audio recorded in order to accelerate the proceedings. Lastly, he complained that the parties were unable to access the case-file during the court’s office hours. On 7 May 2013 lawyers M. and D. requested the disqualification of Judge M., whereby they criticised the way in which the judge had been conducting the hearing, in particular the impossibility to use mobile phones and to access the case-file. All of those motions were immediately dismissed by judge M. as attempts to delay the proceedings and undermine the authority of the judiciary under Sections 43 (1) and 42 (5) of the Criminal Procedure Act (the “CPA”). On 8 May 2013 lawyer O. lodged a motion for the disqualification of Judge M., complaining that during the previous hearing the security guards had turned off the lawyers’ mobile phones. Moreover, Judge M. had been treating the defence witnesses differently than the State Prosecutor’s witnesses. Lastly, O. complained again about the hearings not being recorded. The following day the president of the court dismissed the request as manifestly ill-founded. At the hearing of 9 May 2013 the applicant requested the disqualification of Judge M. Judge M. had allegedly not been impartial as she denied the applicant access to the case-file on 29   April, 5 May and 8   May   2013. Further, Judge M. had taken a statement from R. – a distinct district state prosecutor acting in a different case – without a previous request by the prosecution. An argument between the defence lawyers and the trial judge followed. In particular, lawyer O. kept interrupting the trial judge while she was dictating to the recording clerk what to enter in the minutes of the hearing. After Judge M. warned O. that she would fine him if he did not stop interrupting her, O. told her to do that and left the hearing room. Consequently, Judge M. fined O. 500 euros (EUR) for disorderly conduct. Judge M. further fined the applicant EUR 500 under Section   140   (1) of the Criminal Procedure Act (“the CPA”) read in conjunction with Section   78 (1) of the CPA. The trial judge held that the applicant’s request for her disqualification was intended to delay the criminal proceedings and undermine the authority of the judiciary. Judge   M. explained that the conduct of the proceedings lied within the exclusive competence of the trial judge, including the decision which witness will be questioned and whether to permit access to the case-file. In a written decision dated 9 May 2013 concerning the fine imposed on the applicant, Judge M. added that the fine could be converted to imprisonment under Section 130 of the CPA. In that decision the judge pointed out that the applicant’s motion for her disqualification had been identical to that of two other lawyers, M. and D. which had been dismissed at the hearing of 7 May 2013, during which the applicant was present. The judge further noted that so far three requests for her disqualification had been lodged in which the lawyers, including the applicant, criticised the way in which she had conducted the criminal proceedings, a matter which lie within the exclusive competence of the judge and which could be contested only in an appeal against the first-instance judgment. With such an attitude the applicant had manifestly intended to delay the criminal proceedings. In determining the amount of the fine the judge considered that the applicant as a practicing lawyer should be aware of how to act before the court. On 6 June 2013 the applicant appealed. She maintained that her request for disqualification was different from that of M. and D. as it contained new facts, namely denial of access to the case-file and the inquisitorial role of Judge M. when hearing R. The applicant pointed out that the deliberation on her second request for disqualification had only taken 22 minutes which was not long given that the hearings were held from 9 a.m. to 8 p.m. Moreover, the trial judge did not explain how the applicant had delayed the proceedings. Neither did she provide reasoning for the rejection of her motion for disqualification. The applicant merely exercised a procedural motion which was provided for in the CPA. Lodging procedural motions, albeit unfounded, could not be subject to disciplinary sanctions. On 28 June 2013 the Maribor Higher Court dismissed the appeal. It held that the applicant’s request for disqualification contained the same grounds as those raised by lawyer D. The Higher Court reiterated that it is for the single judge to decide which witnesses will be heard and any decision on the conduct of the criminal proceedings may be contested only in an appeal against the first-instance judgment and not in a request for the judge’s disqualification. Being a lawyer, the applicant should have been aware of that. Her conduct showed a clear intention to delay the proceedings. The first-instance court was under a duty to conduct the criminal proceedings as quickly as possible and its decision to fine the applicant was justified, whereby the fine imposed and its amount was proportionate to the gravity of the alleged infringement. B.     Relevant domestic law and practice Under Section 39 (1) (6) of the Criminal Procedure Act (Official Gazette no. 32/2012) a judge may not perform judicial duties if circumstances exist that give rise to doubts over his impartiality. Section 41 of the same Act provides that a party shall request the disqualification of a judge as soon as he learns of the existence of grounds for disqualification and no later than before the conclusion of the main hearing. A party cannot repeat in the request for disqualification the reasons cited in a previous request which was dismissed, or cite the reasons already cited by the judge, lay judge or other party in the case on the basis of which the request was dismissed. Under Section 42 the request for disqualification shall be decided by the president of the court. If the party acted in a manner contrary to the provisions of Section 41, or if it is clear from its contents that the request is obviously without foundation and has been submitted in order to delay proceedings or undermine the authority of the court, the request shall be dismissed by the judge hearing the case. The judge whose disqualification is being requested may take part in the decision-making. No appeal shall be permitted against a ruling rejecting the request. According to Section 43, as soon as a judge learns that his disqualification has been requested, he must immediately discontinue any further action in connection with the case, unless it involves an unlawful or clearly groundless request for disqualification which is dismissed. Section 78 provides that the court shall impose a fine on defence counsel which amounts to a minimum of one fifth of the last officially announced average net monthly salary per employee in the Republic of Slovenia and to a maximum of three times the amount of that salary. The ruling on the fine shall be rendered by the panel before which the abusive statement was made; if the insult is contained in the submission, the ruling on the fine shall be rendered by the court which is to decide on the submission. The imposing of a fine on a lawyer shall be reported to the Bar. Under Section 130 if a fine prescribed by this Act cannot be enforced, the court shall execute it by imposing one day in prison for each 42 euros started. According to Section 140, the court may, during the proceeding, impose a fine referred to in Section 78 on the defence counsel if their behaviour is obviously intended to protract criminal proceedings. The court shall report the punishing of a lawyer to the Bar. In a decision of 23 June 2005 (U-I-145/03) the Constitutional Court reviewed the regulation of the Civil Procedure Act concerning the sanctioning of lawyers during the civil proceedings (see Alenka Pečnik v.   Slovenia , no. 44901/05, §§ 20-22, 27 September 2012). COMPLAINTS The applicant complains that Judge M., when adopting the decision fining her for abuse of process, lacked impartiality, contrary to Article 6 § 1 of the Convention. The applicant further complains that there was no reason for the imposition of a fine as she merely exercised her client’s right of defence lawfully with due respect for the court and without protracting the criminal proceedings.     QUESTIONS TO THE PARTIES 1.     Was Article 6 § 1 of the Convention under its criminal head applicable to the proceedings in the present case (see Alenka Pečnik v.   Slovenia , no.   44901/05, §§ 30-35, 27 September 2012)?   2.     If so, did the applicant exhaust all effective domestic remedies, as required by Article 35 § 1 of the Convention, having regard to the Constitutional Court’s decision of 23 June 2005 (no. U-I-145/03) underlying the case of Alenka Pečnik v.   Slovenia (cited above) and the fact that the decisions rendered in the small-claims disputes are not in principle subject to the examination of the Constitutional Court?   3.     Was the imposition of the fine on the applicant fair within the meaning of Article 6 § 1 of the Convention? In particular, was the Maribor Local Court, which fined the applicant, impartial as required by Article 6   §   1 of the Convention (see Kyprianou v. Cyprus [GC], no. 73797/01, §   108, ECHR 2005 ‑ XIII and Alenka Pečnik v. Slovenia , cited above, §§ 41-44)?