Up-709/15, Up-710/15

Reference no.:
Up-709/15, Up-710/15
ECLI:
ECLI:SI:USRS:2019:Up.709.15
Abstract:
[The text published below is a summary prepared for the annual report.]
 
The Right to an Impartial Judge in Instances of a Co-defendant's Admission of Guilt
 
 

By Decision No. Up-709/15, Up-710/15, dated 9 October 2019 (Official Gazette RS, No. 69/19), the Constitutional Court decided on the constitutional complaint of a complainant who was found guilty of the criminal offence of accepting a bribe determined by the first paragraph of Article 261 of the Criminal Code. He was sentenced to prison. The complainant’s most important allegations were the following: (1) that his right to an impartial trial determined by the first paragraph of Article 23 of the Constitution was violated because the same judge who had previously decided on the guilt of his two co-defendants also decided on his guilt; (2) that his right determined by Article 22 of the Constitution was violated because the court order authorising the acquisition of information concerning a bank transfer did not include a reasoning; (3) that due to the use of traffic data his right to communication privacy determined by Article 37 of the Constitution was violated; and (4) that his right to a defence was violated because the court failed to give him the opportunity to examine a witness for the prosecution. In an extensive decision, the Constitutional Court rejected all of the complainant’s allegations and provided reasons for such, and consequently dismissed the constitutional complaint as unfounded.

 

With regard to the court order by which the investigating judge required the bank to send him information concerning the complainant, namely information regarding a bank transfer – i.e. a cash deposit made by the complainant – the Constitutional Court held that it was sufficiently reasoned. It clearly stated the reasons that were the basis for the court’s decision. With regard to the acquisition and use of the traffic data, the Constitutional Court took into account that such measure was ordered due to the existence of the suspicion that a serious criminal offence had been committed, that its duration was limited, that the court substantiated it by providing reasons that were grounded in objective criteria for accessing such data, as at the time when the order was issued the criminal offence was already being monitored through other covert investigative measures, i.e., inter alia, by means of the measure of wiretapping and recording communications, which entails the most profound interference with the right to communication privacy. The measure also encompassed stored traffic data for a very brief period preceding the issuance of the court order by which it was ordered. The Constitutional Court assessed that, in the circumstances of the case, neither the storage nor the acquisition of the information contradicted the constitutional requirements that an interference with communication privacy as enshrined in the first paragraph of Article 37 of the Constitution must be proportionate. With regard to the dismissal of the motion to examine witnesses – i.e. the complainant’s co-defendants, who had beforehand admitted their guilt – the Constitutional Court held that it did not violate the complainant’s right to a defence determined by the second indent of Article 29 of the Constitution. The final judgment namely did not rely exclusively or decisively on the defence of these co-defendants acting as witnesses, nor had the other evidence been assessed from the perspective of their defence.

 

The Constitutional Court adopted important precedential positions with regard to the right to an impartial court when it previously decided on the criminal liability of an accused person’s co-defendants who had admitted their guilt. The challenged first instance judgment was namely adopted by the judge who had previously accepted the admission of guilt of the complainant’s co-defendants in disjoined proceedings and thus allegedly had formed a preconceived opinion on the adjudicated subject matter. The review proceeded from the first paragraph of Article 23 of the Constitution, according to which everyone has the right to have any decision regarding his or her rights, duties, and any charges brought against him or her made without undue delay by an independent, impartial court constituted by law. In accordance with the established constitutional case law, impartiality entails that the person adjudicating on a matter does not have a vested interest in the outcome of the proceedings and is open to the evidence proposed and the motions of the parties. In order to be able to decide in an impartial manner, a judge must thus not form a preconceived opinion on the adjudicated subject matter, and the decision of the court must be adopted on the basis of facts and reasons presented by the parties in the course of judicial proceedings.

 

The impartiality of a judge is ensured when from the standpoint of a reasonable person there exist no circumstances relating to the judge that would raise justified doubt as to his or her capacity to decide impartially on the request at issue (i.e. the subjective aspect of impartiality). Furthermore, from the right to an impartial trial there also follows the requirement that when acting in individual cases courts have to create and maintain the appearance of impartiality (i.e. the objective aspect of impartiality). The impartiality of judges as the bearers of judicial power at individual courts must thus also be assessed according to its outward expression, i.e. how the (im)partiality of judges is understood by the parties to proceedings and how such can be understood in the eyes of the public. It therefore does not suffice that in proceedings the court acts and decides in an impartial manner; the court must also be composed in such a manner that there exist no circumstances that would raise doubt regarding the appearance of the impartiality of the judges. In addition to ensuring the observance of procedural safeguards, from the perspective of ensuring the objective aspect of the court’s impartiality it is also important to eliminate circumstances that from the standpoint of a reasonable person would raise justified doubt as to the judge’s impartiality. In connection therewith, the confidence that the decisions of the courts must inspire in the public in a democratic society is especially accentuated.

 

On the basis of these criteria, already by Decision No. Up-57/14, dated 26 January 2017, the Constitutional Court established a violation of the right to an impartial trial determined by the first paragraph of Article 23 of the Constitution because the court’s assessment in the judgment that had been issued against the complainant’s co-defendants in joined criminal proceedings contained an assessment of the complainant’s actions, on which the court decided by a subsequent judgment issued against the complainant in disjoined proceedings. As in that case the same judge who had already decided on the guilt of the complainant’s co-defendants also decided on the complainant’s guilt and the judgment against the co-defendants included positions that prejudged the assessment of the complainant’s guilt in his subsequent trial, the appearance of the court’s impartiality in the subsequent disjoined criminal proceedings was impaired to such an extent that one could no longer speak of an impartial trial.

 

The institution of the exclusion of a judge is one of the most important procedural statutory institutions in criminal proceedings for ensuring the right to an impartial trial. In the Criminal Procedure Act, the grounds for exclusion according to which a judge must not adjudicate in a case if he or she has issued an order rejecting the defendant’s admission of guilt or rejecting an agreement containing a guilty plea are included among the mandatory grounds for exclusion (iudex inhabilis), which entail the irrefutable legal presumption (presumptio iuris et de iure) that they affect a judge’s impartiality and prevent the judge from adjudicating a case. Instances where a judge accepts a defendant’s admission of guilt and subsequently adjudicates in the trial against his or her co-defendants are not expressly regulated by the Act. The Act does, however, also regulate the grounds for exclusion due to bias (iudex suspectus), according to which a judge must not perform his or her function as judge if there exist circumstances that raise doubt regarding the judge’s impartiality. As the Constitutional Court held already in Decision No. Up-57/14, a judge must recuse him- or herself if he or she believes that his or her role in a trial against a defendant’s co-defendants entails grounds for exclusion due to bias in accordance with the established constitutional case law and the case law of the ECtHR.

 

In the case at issue, at the 19th hearing of the trial, the complainant’s co-defendants admitted the commission of the criminal offences of accepting a bribe, and the judge hence decided to disjoin the criminal proceedings against them and decide them separately. Following the pronouncement of the judgment against his co-defendants, the judge only conducted three further hearings in the criminal proceedings against the complainant. In the disjoined criminal proceedings against the co-defendants the same judge adjudicated as in the criminal proceedings that continued against the complainant following the disjoining.

 

As the judgment in the disjoined proceedings was issued on the basis of an admission of guilt, the court did not establish the facts of the case, nor did it assess all of the evidence at a public, oral, and direct main hearing. In the judgment against the co-defendants, the District Court limited itself solely to the finding that they admitted their guilt before the judge, who accepted their admissions. Consequently, the judgment contains no reasoned positions that also include an assessment of the concrete acts of the complainant, which the court decided by the subsequent judgment issued against him. The judgment against the co-defendants from the disjoined criminal proceedings did, however, contain operative provisions including a description of the legally relevant facts of the concrete case, a citation of the criminal offences at issue, the determination of the criminal sanction, and the decision.

 

The adoption of a judgment on the basis of an admission of guilt nevertheless requires the court’s conviction that the judgment truthfully reflects the relevant past event and that the defendants are guilty. The court namely still adopts the judgment on the basis of facts that it accepts as such or that are deemed to be such due to the admission of guilt. In the disjoined proceedings, the court therefore had to adopt a decision on the merits concerning the guilt of the co-defendants even though they had admitted their guilt. The description of the legally relevant facts of the concrete case with regard to the criminal offence in the operative provisions of the judgment against the co-defendants included the statement that the co-defendants were involved in bribing the complainant. In connection with the individual acts of commission, the court also noted the role the complainant played in their commission and the fact that the complainant’s co-defendants claimed the money in his name; the judgment also mentions that part of the money that the injured party gave to the co-defendants was handed to the complainant.

 

The criminal offences referred to in the judgment against the complainant’s co-defendants cited the same past events as the past events contained in the description of the legally relevant facts of the case referred to in the challenged judgment against the complainant. The complainant and his co-defendants were each convicted of a continued offence of accepting a bribe. His co-defendants were convicted of acting as agents in connection with the acceptance of a bribe, and the complainant was subsequently convicted of accepting a bribe. Therefore, when establishing the statutory elements of the offence of acting as an agent in connection with the acceptance of a bribe, given the definition of such criminal offence, in the judgment against the complainant’s co-defendants the court had to establish the existence of a bribe (but it did not have to substantiate such, as the case concerned a judgment on the basis of an admission of guilt). The acts of the complainant (who demanded or accepted a bribe) and his co-defendants (who acted as agents in connection with the bribe) concern acts arising from the same past event and they in fact entail the incrimination of different forms of participation in the same criminal offence. However, the judgment on the basis of the admission of guilt only referred to the co-defendants who admitted their guilt.

 

The Constitutional Court considered the time when the complainant’s co-defendants admitted the criminal offence to also be important for the case at issue. The epistemological value of an admission of guilt can namely depend on the time when it is given. The later in the process of taking evidence such an admission is given, the lower is, as a general rule, its weight in the judge’s cognitive process. The complainant’s co-defendants admitted their guilt at the 19th hearing of the trial. The judge only conducted three further hearings in the criminal proceedings against the complainant and no new evidence was presented therein. The complainant only began to present his defence after his co-defendants had admitted the alleged criminal offence at the 19th hearing of the trial. The complainant had exercised his right to remain silent throughout the proceedings up to that point and had not actively defended himself. At a hearing intended for the pronouncement of the judgment, one week after the pronouncement of the judgment against his co-defendants, the judge pronounced a judgment of conviction against the complainant. As a result, it could be concluded that by the time the complainant’s co-defendants decided to admit the alleged criminal offence the process of taking evidence had already entered its final stage and was nearly completed. The weight of their admission in the judge’s cognitive process was thus accordingly lower in this stage of the criminal proceedings than it would have been if the admission had occurred already in the initial or an earlier stage, e.g. the pre-trial hearing. Therefore, it cannot be concluded that the judge who adopted the judgment against the complainant after having accepted the admission of guilt of his co-defendants in the disjoined proceedings had (solely) on the basis of his co-defendants’ admission formed a preconceived opinion regarding the adjudicated subject matter. It does not follow from the judgment against the complainant that the court referred to the judgment that had been issued against his co-defendants on the basis of their admission of guilt in connection with their role and acts. The court provided a reasoning of its assessment of the evidence without referring to the admission of the co-defendants. Although the judgment that was based on the co-defendants’ admission of guilt was adopted on the basis of the judge being convinced of their guilt and it also mentions the role of the complainant, it does not contain any position of the court regarding the complainant’s guilt, nor did the court refer to the admission of guilt of the complainant’s co-defendants in the challenged judgment. The Constitutional Court therefore held that the court’s handling of the criminal proceedings did not create the appearance that the president of the panel had formed a preconceived opinion on the adjudicated subject matter. The complainant’s right to an impartial trial determined by the first paragraph of Article 23 of the Constitution was thus not violated.

Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
Milko Škoberne, Laško
Date of application:
05.10.2015
Date of decision:
09.10.2019
Type of decision adopted:
decision
Outcome of proceedings:
dismissal
Document:
AN03994