We are revealing a new case of conflicting actions of the Constitutional Court judge Rok Čeferin, namely, the case of Marjan Amon, a former employee of the national public broadcasting organisation RTV Slovenia. As some legal experts pointed out, the fact that RTV Slovenia has been paying an amount of 4,270 euros to the Law Firm Čeferin practically every month since 2015 is particularly problematic. In total, the law firm has received 326,579.44 euros from RTV so far. Rok Čeferin is still listed as one of the co-owners of the law firm. We asked the Constitutional Court about this and also received their answer – they do not think of Čeferin’s actions as controversial. However, the experts we spoke to told us that the response of the Constitutional Court of the Republic of Slovenia was very cynical and formalistic. They ensure that this is, in fact, a serious conflict of interest, which also raises suspicions of corruption. They also listed three similar cases from abroad to support their claims. We will also support all our allegations with three cases from the European Court of Human Rights, where judges from Iceland, Spain and Cyprus were held accountable for violations, similar to Čeferin’s. All three were found guilty of conflict of interest. Among other things, Rok Čeferin also violated Article 6 of the European Convention on Human Rights, which ensures everyone the right to a fair trial.
Constitutional Court judge Rok Čeferin made a mistake when he ruled in the case of Peter Kodrič twice and found himself in a conflict of interest. The mistake was discovered when Kodrič’s case was brought before the European Court of Human Rights. Due to the harsh response, the Constitutional Court of the Republic of Slovenia informed the public that an error and mistake had been made. But all indicators point to the fact that another serious professional error happened to the Constitutional Court judge Čeferin.
On the 17th of February 2021, Rok Čeferin ruled in a matter with his fellow judges, Matej Accetto, Ph.D., Dunja Jadek Pensa, Ph.D., Špelca Mežnar, Ph.D., Marjan Pavčnik, Ph.D., Marko Šorli, Ph.D., and the President of the Constitutional Court, Rajko Knez, Ph.D., and they unanimously rejected the appeal of Marjan Arman. He sued RTV Slovenia for the amount of 750 euros, the Constitutional Court explained. However, a problem arose for Čeferin – one of the parties in the proceedings was RTV Slovenia, which has been sending monthly flat rates to the Čeferin, Pogačnik, Novak, Koščak and Partners Law Firm since 2015. And according to official data, Rok Čeferin still owns 21 percent of the law firm.
Law experts warn that the conflict of interest is obvious In recent days, we have spoken to a number of legal experts about this case. They believe that there is an obvious conflict of interest in this case, and they also pointed out that concluding contracts between a company of a public legal entity (in our case RTV Slovenia) and a certain law firm represents a privilege. The experts also emphasised that the monthly amount of more than four thousand euros, received by the Čeferin law firm, is very profitable for them. The reason why the Čeferin law firm was hired was already explained to us by RTV Slovenia last year when we published an article in which we revealed some of the earnings of some of the Slovenian law firms. Among them, the Čeferin law firm earned the most money through RTV Slovenia. Namely, from April 2015 until today, they have received 325,579.44 euros from the public broadcaster. The RTV public relations department told us that they have a concluded contract of cooperation with the Čeferin and Partners Law Firm, based on which the firm charges them monthly for the provided services. The law firm offers RTV Slovenia legal services in all legal areas and on all issues where they need legal assistance from an external legal expert. It offers services to an unlimited extent and at each call or request of RTV Slovenia. The services provided by the law firm are also performed in court proceedings, in which specialist knowledge and experience from practise are recommended. Both substantive, as well as procedural law, depend to a large extent on the case law, which changes (often), and as a result of this, representation by a law firm reduces risks and increases the predictability of the outcomes of court proceedings. This also includes representation in court.
This answer confirms what the experts we spoke to said, namely, that in similar cases, it is expected that a judge, connected with a law firm, will vote in favour of the contractual partner of “his” law firm, which, in this case, is RTV Slovenia. In the case of judge Čeferin, RTV’s fee was literally paid to him, as he is the owner, so in the case in question, when the party in the proceedings was RTV Slovenia, we have to wonder about the suspicion of corruption. Any reasonable person will connect Čeferin’s decision to vote in favour of RTV Slovenia with the payments of a lump sum to his law firm. Therefore, the experts we talked to once again emphasised that this is a serious conflict of interest, which raises suspicion of corruption. If we use logic, it quickly becomes clear that RTV is paying a law firm, the partial owner of which is one of the judges of the Constitutional Court in its current composition. In the event that Rok Čeferin voted differently, RTV Slovenia could have terminated the contractual relationship.
Judges who come from the ranks of lawyers pose a great corruption risk, our interlocutors believe, if they are also connected to a particular law firm, in terms of ownership or career. It is completely inappropriate to maintain the ownership share even during the term in office of the Constitutional Court judge. A lawyer who becomes a Constitutional Court judge should close his office, get rid of his shares, and sever any business ties with the law firm or office from which he originates. We were also reminded of the case Uo-179/12 of the 16th of September 2014. Namely, the story of how one of the Constitutional Court judges at the time forgot to exclude herself, regardless of the heated debate that happened between the Constitutional Court judges themselves, has been circulating for a long time now. As we have learned, the judge did not exclude herself from the case, even after the calls from her fellow judges. Instead, she ignored all of their well-meaning calls and judged in favour of the party, represented by a close relative of the said Constitutional Court judge. A similar thing is now happening in two cases, which involve the current judge of the Constitutional Court, Rok Čeferin.
Judge Čeferin violated the important Article 6 of the Human Rights Convention, on the right to a fair trial The answer of the Secretary-General of the Constitutional Court, Sebastian Nerad, tells us how the cunning RTV-Constitutional Court connection really works. Namely, Nered considers the decision of judge Čefein in the case of an employee of RTV Slovenia to be indisputable. He poorly argues this by saying that RTV Slovenia was not represented by the Čeferin law firm in the Constitutional Court.
Not everyone agrees with this, as they pointed out that Rok Čeferin violated the criteria of the European Court of Human Rights regarding the impartiality of judges in the commentary of Article 6 of the Convention of Human Rights – on the right to a fair trial. This article is the only one that guarantees judicial impartiality. This is the basic element of the right to a fair trial. It is a constitutional and convention guarantee of a fair trial that stands and falls on impartiality. In the case of judge Čeferin’s decision against an employee of RTV Slovenia, the appearance of impartiality was certainly affected.
It often happens that it is not known when the European or international law takes precedence over the adopted constitution in individual countries. The European human rights law is above the Constitution in cases where it provides higher guarantees than the domestic constitutional order. This is a principle of maximum protection of human rights. This is written in the fifth paragraph of Article 15 of the Constitution of the Republic of Slovenia: no human right or fundamental freedom regulated by legal acts in force in Slovenia may be restricted on the grounds that the Constitution does not recognise that right or freedom or recognises it to a lesser extent.
The case-law of the European Court of Human Rights excludes “Čeferins” from the decision making In the following part of the article, we will present three cases from Europe, in which the judges fount themselves in a conflict of interest, and the case-law of which should also be applied in the case of the Constitutional Court judge Čeferin.
We will first introduce the case of the Icelandic judge Guðrún Erlendsdóttir. The European Court of Human Rights (ECHR) dealt with the case of an Icelandic citizen, Petur Thor Sigurdson. The said judge participated in the proceedings between the applicant and the National Bank of Iceland. Her husband held one of the positions in the Bank, but he was not involved in any of the proceedings at the National Bank of Iceland mentioned above. Namely, the Bank was involved in a procedure in which they were deciding on the settlement of the debt between the State institution in which the husband of the judge was employed, and the applicant. Therefore, the applicant was clearly afraid that he had not been guaranteed the impartiality of the trial. The following is the case of Pescador Valero v. Spain. The appellant appealed because in his case, the Spanish judge J. B. L. was part of the team of judges. The problem was that the aforementioned judge was an associate professor at the University that the Spanish citizen Pescador was suing. The Spanish judge served as a judge at the High Court of Castilla-La Mancha. It was stated that the reason for the conflict of interest was that the Spanish judge received payment for his work from the University. According to the ECHR, this situation may have brought up the applicant’s legitimate fear that judge J. B. L. was not impartial when deciding in this case. In the Cyprus case, Nicholas v. Cyprus, judges at the ECHR wondered whether a judge could rule in a case that involves a law firm in which his relative is employed. In this case, they wondered how important it was that the judge knew about the structure of the company, who are its main decisionmakers, the size, and the possible financial interest of the relative. The Cyprus case seems a lot like the problem that Čeferin found himself in. After all, his decision in favour of RTV Slovenia enables him (regardless of the consent and the fact that RTV Slovenia was represented by another office in this case) to still maintain the contract with RTV Slovenia.
The experts we spoke to claim that, according to the case law, the party that suffered damages, Marjan Arman, has a great chance of winning the dispute if he decides to bring the case before the ECHR because of Čeferin’s mistake. However, the Constitutional Court still believes otherwise. This was their response to our question:
“Dear Sir or Madam,
judge dr. Čeferin forwarded your question to me and asked me to answer you regarding his ruling in general and in this particular matter that you mentioned.
Based on the general decision of the Constitutional Court, judge Čeferin is automatically and in advance excluded in all cases, in which one of the parties in the proceedings before the Constitutional Court is represented by the Law Firm Čeferin and Partners. On the basis of the same decision, he is also excluded in all proceedings in which one of the parties in the preliminary proceedings, or in the earlier stages of the proceedings in the same case, was represented by the Law Firm Čeferin and Partners. Similar decisions have been made for other judges (now and in the past) who, due to their previous employment or kinship with lawyers or regular court judges, could be in a conflict of interest in the trial.
In the case you mentioned, the Law Firm Čeferin did not represent any of the parties, neither in the proceedings before the Constitutional Court nor in the preliminary proceedings in the various other courts. The fact that the Law Firm Čeferin represented a certain party in another case not related to the subject matter does not constitute a reason for exclusion in a case where there was no cooperation between the Law Firm Čeferin and that party.
A judge may also propose his or her exclusion if he or she believes that there are certain circumstances that could cast doubt on his or her impartiality in the decision-making. In the case in question, the judge found that no such circumstances had been established. The case was related to a dispute between the complainant and RTV Slovenia over the payment of 750 euros. The Constitutional Court rejected the appeal. The decision was taken unanimously.
In the proceedings before the Constitutional Court, the party itself (meaning the complainant) could also propose the exclusion of an individual judge. The complainant in this case did not submit such a proposal throughout the time of the proceedings before the Constitutional Court.
Kind regards.”
We also showed the Constitutional Court’s response to the experts we spoke to, and according to them, it is only a formalistic and cynical excuse – especially in the part where they claim that the complainant himself could have proposed the exclusion of a judge from the proceedings. They wondered how the complainant is supposed to know that RTV Slovenia transfers a little over four thousand euros to Čeferin’s law firm almost every month. This could be understood as if every party should check all available public records to see who is paying the Čeferin law firm. In addition, it is extremely humiliating that the judge himself did not propose to be excluded from the case in question. In this case, the “causa” of the contract on the financing of his law firm by the RTV could fail. The experts also do not agree that the Čeferin law firm was not representing RTV in the proceedings before the Constitutional Court: “Of course they did not, because the procedure for examining a constitutional complaint is unilateral – but the law firm is still being financed by the opposing party (RTV Slovenia) because of a procedure, in which the issued court decision was challenged.”
Luka Perš
