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The Disqualification of an Appellate Court Judge in Criminal Proceedings

By Decision No. Up-96/15, U-I-208/18, dated 12 March 2020 (Official Gazette RS, No. 55/20), the Constitutional Court decided on the constitutional complaint of a complainant whose conviction for committing the criminal offence of instigating someone to commit the criminal offence of abusing a position or rights had become final. He lodged a constitutional complaint against the Supreme Court judgment dismissing his request and the request of his counsel for the protection of legality. The complainant alleged, inter alia, that he learned of the fact that his appeal was allocated to a judge whose impartiality was allegedly in doubt only after he received the judgment of the Higher Court. In the challenged judgment, the Supreme Court based its decision that the complainant was precluded from claiming a violation of the appearance of impartiality as a right determined by the first paragraph of Article 23 of the Constitution on the position that the complainant and his counsel should have made inquiries regarding the composition of the Higher Court panel before the beginning of the Court’s session in order to be able to file a timely request for the disqualification of the judge in question.

When deciding on the constitutional complaint, doubts arose as to whether the legislature regulated, by the Criminal Procedure Act, the manner of the exercise of the right determined by the first paragraph of Article 23 of the Constitution in such a manner that a defendant can effectively propose the disqualification of a Higher Court judge in cases in which the Court decides on a case at a session that is closed to the public and of which the parties are not notified. The Constitutional Court, therefore, initiated proceedings to review the constitutionality of Article 41 of the Criminal Procedure Act, which regulates the procedure wherein a party may request the disqualification of a judge and which does not require a defendant to request a notification from the court regarding the composition of the court’s panel or oblige the court to notify the defendant thereof.

The Constitutional Court reviewed the challenged statutory regulation from the perspective of the right to an impartial judge. The Constitutional Court defined the institution of the disqualification of a judge as one of the most vital procedural institutions for ensuring the right to an impartial trial. In its opinion, the statutory regulation must clearly define the possibility of parties to learn in a timely manner which judges are to decide on their legal remedies in judicial proceedings and thereby ensure them the possibility to effectively exercise the right to request the disqualification of a judge. The procedural rules ensuring such must, therefore, be determined by the Criminal Procedure Act. What must be precisely defined is in particular the rule determining how parties must act and when they must indicate whether they will request the disqualification of an individual judge in order for their request to be deemed to be on time and to enable that a decision thereon can be made before the court decides on their legal remedy. As in most cases appellate courts decide at sessions in the parties’ absence, the parties in such cases learn of the composition of the panel only when they receive the decision of the court. They can, therefore, effectively exercise their right to an impartial court only if they request that the court notify them of the composition of the panel deciding on their appeal before such decision-making has begun.

The Constitutional Court held that Article 41 of the Criminal Procedure Act does not ensure effective exercise of the right to an impartial judge determined by the first paragraph of Article 23 of the Constitution. It explained that the preclusion of invoking allegations regarding the composition of a Higher Court panel is not in itself unconstitutional. What is unconstitutional is the fact that the law does not contain any rule that would either require courts to notify parties of the names of the panel members or impose the burden of taking the necessary steps to obtain a prior notification regarding such on the parties, thus providing the basis for a preclusive effect. What is at issue is a case in which a law has failed to regulate an issue that must necessarily be regulated under constitutional law. The Constitutional Court therefore issued a declaratory decision. It established the unconstitutionality of Article 41 of the Criminal Procedure Act since the preclusion of the exercise of the right follows from this Article. However, the legislature is free to choose where to embed the amendment remedying the established unconstitutionality. The Constitutional Court determined the manner of the implementation of its Decision in order to protect the right to an impartial judge in criminal case appeals as one of the central safeguards of any fair proceedings until the established unconstitutionality is remedied.

In the challenged judgment, the Supreme Court based its decision that the complainant was precluded from claiming a violation of the appearance of impartiality on the requirement that the complainant and his counsel should have, in order to be able to request the disqualification of a judge of the court in due time, made inquiries regarding the composition of the Higher Court panel before the beginning of its session. Due to the reasons for the establishment of the unconstitutionality of Article 41 of the Criminal Procedure Act, the Constitutional Court found that such position of the Supreme Court violated the complainant’s right determined by the first paragraph of Article 23 of the Constitution. The Constitutional Court abrogated the challenged Supreme Court judgment and remanded the case to that court for new adjudication. In the new proceedings the Supreme Court will have to, provided all other requirements for a decision on the merits are fulfilled, review the complainant’s allegations regarding the violation of the right determined by the first paragraph of Article 23 of the Constitution from his request for the protection of legality.