Up-346/04

The Supreme Court's position that the complainant should have requested the disqualification of the judge who had conducted proceedings on the merits before the end of the main hearing, or, provided that the statutory prerequisites had been fulfilled, in the appeal against the judgement, is by itself not unacceptable from the viewpoint of the violation of the right to impartial adjudication. The Supreme Court namely examined not only whether the complainant had asserted the alleged violation but also whether he was at all entitled to assert such.

 

The Constitutional Court in its Decision No. U-I-92/96 of 21 March 2002 (Official Gazette RS, No. 32/02, OdlUS XI, 45) wrote that in ensuring the requirement of impartial adjudication, item 6 of Article 39 of the Criminal Procedure Act cannot be applied, as the burden of proof is on the person who doubts the impartiality, whereas the defendant must be guaranteed such position in criminal proceedings already by the legislature. Irregardless of the fact that in the judgment the Supreme Court adopted the position that the complainant should have asserted a violation of the right to impartial adjudication referred to in item 6 of Article 39 of the Criminal Procedure Act, it follows from the reasoning that it did not shift the burden of proof to the complainant, as alleged by the complainant, but only the burden of allegation, therefore it justifiably examined only whether the complainant did assert the alleged violation or could have alleged such (regarding which it did not limit its examination only to the beginning of the main hearing, but also considered the period from the serving of the order on disqualification until the end of the main hearing), and not whether he succeeded in proving the influence of this violation on the legality of the adjudication. According to the Constitutional Court, the Supreme Court had met the criteria for the review of the violation of the right to impartial adjudication determined in paragraph 1 of Article 23 of the Constitution.