On Tuesday, a session of the trial against the leader of the opposition, Janez Janša, at the District Court in Celje in connection with the Trenta case (or Patria 2, as some call it) was held, where Janša and two alleged accomplices are being prosecuted by the specialised state prosecutor for alleged abuse of office or rights. The accused in the proceedings are Janša, former President of the Management Board of the Imos company, Branko Kastelic, and former President of the Management Board of the company Eurogradenj, Klemen Gantar. The trial started farcically, with the judges unable to clarify whether the panel was even legally constituted or not. Janša’s defence lawyer, Franci Matoz, also revealed the political links of two panel judges with left-wing politics and demanded their disqualification.
From the outset, Janša’s defence lawyer, Franci Matoz, questioned the legality of the composition of the Chamber, claiming that it was not constituted in accordance with Article 298(2) of the Criminal Procedure Act, which deals with the legality of the composition of the Chamber.
He referred to the provisions of Articles 175 and 157 of the Rules of Court and clearly explained why the Trial Chamber, in this case, was not lawfully constituted. He said that, as the defence counsel in the case in question, he had been making every effort to verify the legality of the composition of the Chamber and, to that end, after the hearing had been convened, he had, as early as on the 11th of June 2024, addressed a request to the President of the Chamber for clarification of the manner in which the Chamber had been selected (i.e. the judge and the panel judges). He had requested a record to verify the manner in which the case had been assigned to the now-disqualified judge, Marko Grišnik, to the fact that the case had been assigned to the current President of the Chamber, Judge Cvetka Posilovic. He also requested the submission of form SR23, which is used to appoint the panel judges.
On the 14th of June, he received an explanation from the President of the Chamber that Judge Grišnik had been disqualified. The judge also informed him that the selected panel judges were Andrej Vovk and Suzana Žilić, who were supposedly assigned in alphabetical order. At the same time, it was explained that the file on the disqualification of Judge Brišnik had first been assigned to Judge Mojca Gorinek, but that Judge Gorinek had proposed her own disqualification, and the file had therefore been assigned to Judge Posilovič.
The assignment of the President of the Chamber and the panel judges was decided by the President of the District Court of Celje, Petra Giacomelli, but Matoz did not obtain from her a proper explanation of how the Chamber was constituted. Moreover, the President’s explanatory memorandum included the form SR23 on the assignment of panel judges, which was not even drawn up by the President herself. There was still no explanation as to how the case was assigned to Judge Posilovič. Only an extract from the electronic registry with all the judges assigned to the Criminal Division of the District Court in Celje was attached.
In response to Matoz’s repeated requests, the President gave an explanation that she had selected the panel judges in alphabetical order, as shown in form SR23. Regarding the legality of Posilovič’s case, there was no explanation, but only an abstract statement that in the specific case, the legal order had been respected, and the case had been assigned to a judge who was not necessarily the judge who would have been selected in alphabetical order, since that judge might already be in line for another case and therefore had not been given the case. The President of the Court’s explanation seemed to be trying to hide the real reasons for choosing the specific judge and panel judges!
Potential other panel judges were being skipped over
Matoz then pointed out that the Rules of Court require that panel judges be selected in alphabetical order. However, it appears from the attached partial list of the cases assigned to the judges and from the explanation of the President of the Court that certain judges were skipped in favour of the current panel judges, namely, on the 29th of June 2024, the panel judge assigned to the case was Zmago Turnšek, while the juror assigned to the same case was Brigita Tratnik, and since the next judge on the list was Andrej Vovk, he was assigned to the case, since Milan Vogrinc‘s case was stopped due to overload, while after Milan Vogrinc, there are three panel judges assigned to juvenile cases on the list. The next on the list was Judge Marija Železnik, who was overloaded, and then it was the turn of Suzana Žilić, who was also assigned in this case. Therefore, it is clear that some unexplained skipping of judges happened, which is the crux of the matter, and which raises the most serious doubts, if not the very fact of the illegality of the composition of the Chamber, as is apparent from the partial transcript of the assignment or designation of the panel judges. The excuse was that some of the judges were overloaded.
Matoz could not understand why the allegedly overloaded judge, Zmago Turnšek, was assigned to another case (Rimska 3), since he was apparently overloaded (the jury for the Trenta case was set on the 28th of May, while Turnšek was selected for the Rimska 3 case on the 29th of May).
It follows from the above that the panel of judges selected on the 28th of May should have included Zmago Turnšek, as well as Melita Tratnik, as both were already empanelled on the 28th of May 2024, and on the list before Vovko and Žilić. It follows from the above that the alphabetical order provided for in Article 175 of the Rules of Court was skipped and that the two panel judges were not selected in accordance with the Rules of Court, and therefore the composition of the Chamber is, in Matoz’s view, unlawful.
Mr Matoz pointed out that there had already been an unlawful composition of a panel in the same court
Matoz pointed out that in this very court, in another criminal case, where he also represented Janez Janša, the High Court had already detected a serious violation of the rules of procedure in the selection of panel judges, and the High Court had also said that the panel judges had been selected by an unauthorised person. Therefore, Matoz proposed that the President of the Court be summoned to a hearing, because the selection of the panel judges is her prerogative, and the explanation she provided is not sufficient, as the facts show the opposite of what she claims. She was not even able to explain how they came from the President of the Chamber, Grišnik, to Posilovič and why they jumped the alphabetical order even in the case of panel judges. He pointed out that there were 15 other judges available between judges Grišnik and Posilovič, according to the alphabetical order, but there was no explanation as to why there was such a jump, which is a clear violation of the rules of court.
The judge overlooked her duty
The judge objected to Matoz that she had no say in the selection of herself or the panel judges, but Matoz calmly explained that it was for the judge to first determine the legality of the composition of the chamber, and that it was irrelevant that the President of the court had assigned the chamber, since the judge herself was responsible for the legality of the composition of the chamber. He also pointed out that the request was not made with the intention of stalling, since he had already made the same request in nine previous letters to the President of the Court, in which he had strictly demanded an explanation of how the jurors and the President of the Chamber had been determined and an explicit explanation of why the alphabetical order had been omitted.
Tension between Matoz and Judge Posilovič
After that, there was an escalation of the tone between Matoz and the judge, or rather – the judge started shouting at Matoz that she did not decide on the composition of the Chamber and referred him to the registry where he could check the details of the allocation as he wished, while she interrupted the discussion for 20 minutes. Matoz told her that we were not in primary school to be “sent somewhere” and that he himself would not read anything from the registry, as it was the court’s duty to ensure the legality of the Chamber, not the defence’s. He made it clear to her that if the judge thinks that the Chamber is lawfully constituted, he will pursue other legal remedies, and once again suggested that the President of the Court, Petra Giacommelli, should be heard, as the proceedings are public, and it would be undignified for documents to be examined in someone’s offices, instead of in public. Finally, the President of the Chamber gave way, interrupted the sitting and summoned the President of the Court, Petra Giacommelli, to tell her side of the story of how she had assigned judges and jurors.
Giacommelli’s unconvincing account of how she selected the judges
After the break, the President of the Celje District Court, Petra Giacommelli, did come to clarify the confusion about the assignment of judges, but she was very suspiciously stumbling over her words and generally sounded very unconvincing.
She explained that the Panel of Judges’ Office keeps a record of all the cases to which the panel judges have been assigned. If a person is overloaded, they skip them and go on to the next one. When asked by Matoz who determines that a judge is overloaded, she said that it is she who does it. When Matoz asked her about a specific panel judge, she said that she could not say off the top of her head what the reason for the (non-)selection was, but that they always pick a panel judge who is not overloaded. “Were the two judges you skipped – Tratnik and Turnšek – overloaded?” Matoz asked – but got no real answer.
Regarding the assignment of Posilovič, President Giacommelli said that every year, they have an annual roster of judges, with three sitting judges (Turinek, Brišnik, Posilovič) assigned to specialised cases (XK). The other two were eliminated, leaving only Posilovič.
Matoz asked if the list could be checked alphabetically. The President of the Court replied that, of course, it could be done, and he asked why it had not been done so far. The President of the Court said that the minutes were electronic and, therefore, “she could not show them to him” (she must not have heard of the option to extract and export the files…).
Matoz insisted on a written explanation of how the panel judges were assigned so that he could check for himself whether the judges were indeed chosen in alphabetical order, and also asked if there was any internal regulation that determined when a panel judge was overloaded. The judge admitted that nothing like that exists and that the rules of court do not provide for it. It is, therefore, within her discretion to determine when a judge is overburdened.
The Judge adjourned the sitting until 1 p.m.
Matoz and the other defence lawyers were not satisfied with the explanations given by the President of the Court. They insisted that what the judge had explained orally should be put in writing so that they could verify the legality of the panel’s assignment. As Matoz pointed out, the President of the Court had explained that she could have previously forwarded the cases (process acts) that had been received on a particular day from the electronic minutes, in order to see whether the alphabetical order of the judges had been observed, which had not been clarified so far. Even today, she only knew the order numbers of the process acts, but not the surnames or initials of the surnames of the individual defendants (or parties). Without this, there is no way of verifying the lawfulness of the President’s assignment of the President of the Chamber.
Regarding the designation of the panel judges, Matoz believes that the criteria for when this can happen have not been clarified. In the case of judges, this is clearly laid down in the Rules of Procedure. In the case of panel judges, Article 175 of the Rules of Procedure merely states that care shall be taken to ensure an approximately even workload, but nothing about who has the discretion to decide on the overload.
Given that two panel judges were on the list before the judges who were finally empanelled, it is necessary to clarify on what basis and how the decision on the overload of jurors was taken – it should have been ordered or recorded in the roster, which it was not.
Matoz therefore believes that the conditions to hold a hearing will not have been met until these explanations were provided in writing. The lawyers for the co-defendants (Hrvatin and Fišer) joined in the motion to obtain information and documents on the work of the dismissal of certain panel judges and the criteria used in that decision, as well as from the perspective of the basis for the assessment of the President of the Court. The President of the Chamber therefore suspended the sitting until 1 p.m.
Matoz revealed that the two panel judges are politically charged
The President of the Court then prepared a written explanation of how the Chamber was constituted, which will be examined by the defendants’ lawyers at a later date. Matoz also wished to question the panel judges on the circumstances of Article 39(6) of the Criminal Procedure Code, first talking to Judge Andrej Vovk:
Matoz started by asking whether he had ever been a member of a political party before (he had previously said that he was a member of the party Our Country – Naša dežela.) He said that in his youth, he had been a supporter of the Liberal Democracy of Slovenia (Liberalna demokracija Slovenije – LDS) but had never stood as a candidate on the party’s list. Matoz then asked whether it is true that in 2006, he ran on the LDS list for the Municipal Council of Šoštanj. Vovk said that it was a long time ago, that it was possible, but that he does not remember anymore. He said that he was never a member of the party, but that he sympathised with the party.
Juror Žilić admits acquaintance with Minister of Justice Andreja Katič
Matoz then asked juror Suzana Žilić if she knew the current Minister of Justice, Mrs Katič. She admitted that she did know her and that they were colleagues in the municipal administration at the Municipality of Velenje. When Žilić came to the municipality, the current Minister was the director of the municipal administration, in between she was a minister and she was not at the municipality, then she was an adviser to the mayor at the same municipality, until she became a minister again. But Žilić said she is not friends with the Minister. Matoz asked her if Katič had organised a celebration at the municipality when Janez Janša went to prison in the Patria case. She said she is not aware of this. He also asked her if Katič had appointed her to any posts when she was Director. Did Director Katič appoint her as head of the legal service? Žilić said that she did not remember. She said that she never spoke to Katič about the current proceedings.
After the hearing, Matoz demanded that the panel judges be eliminated
After posing the questions, Matoz moved to eliminate the two panel judges, because there were circumstances which cast doubt on their impartiality. With regard to the general distinction of the ECHR’s doctrine, which has also been adopted by our Constitution, between the establishment of an objective appearance of impartiality and the undermining of the actual doctrine of impartiality, Matoz said he would like to identify the ECHR’s example with regard to the selection of impartial panel judges, since even a panel judge is only selected by someone who, under the objective circumstances, cannot have a prior interest in certain decisions (Holmes v. Sweden). The ECHR’s doctrine of impartiality has been adopted by the ECHR in the past. Only someone who has no pre-existing interest in any direction and where there is not even the outward appearance of such an interest can be selected as a panel judge. This appearance of a panel judge has also led the European Court to rule on the panel judge’s association with a political option when it comes to trying a politician. The same is true in the present case. Juror Andrej Vovk was a candidate for municipal councillor on the list of the LDS party, which at that time and even today (integrated into the ruling Freedom Movement – Gibanje Svoboda) is an active and fierce opponent of the SDS party and its president Janez Janša.
There is no need for further arguments in this case. Any active involvement in a political option naturally leads to the fact that such a juror cannot be impartial, either objectively or subjectively. However, any reasonable doubt that the court would be biased in this respect must be excluded.
Volk was a member of the LDS party
Given the fact that juror Vovk only confirmed that he was standing for the 2022 parliamentary elections as a candidate of the Our Country party in the Velenje constituency, it is quite likely that he is actively political, actively involved in politics, and that he undoubtedly has, by nature, certain beliefs – and it does not even matter whether they are positive or negative towards the accused – and Matoz assumes that his opinion towards the accused is probably negative, given that he has worked with the LDS party before.
Žilić was appointed by Katič
The same applies to Žilić, Matoz said. According to her own testimony, she was appointed head of the legal department at the time when the current Minister of Justice, Katič, was the Director of the municipal administration, although she does not know who formally signed the contract, but it is undisputed that she was in a subordinate relationship to Katič at that time. Given that numerous articles and quotes from Minister Katič’s speeches can be found on the internet, where she is very fond of attacking the direction of the SDS party and its President Janez Janša (sometimes even using insulting language about him), it is quite clear, in the opinion of the defence counsel, that the objective appearance of impartiality has been violated as a result of Žilić’s cooperation with Katič.
Matoz, therefore, believes that both panel judges have grounds for disqualification under point 6, paragraph 1 of Article 39 of the Criminal Procedure Code and that they cannot impartially judge this criminal case.
The arbitrariness of the President of the Court, Giacommelli – Matoz would also like to disqualify her
Notwithstanding Tuesday’s clarification by the President of the District Court, Petra Giacommelli, on the composition of the Chamber, Matoz believes that there were serious doubts about the legality of the composition of the Chamber. As he had pointed out earlier, this had already happened in a previous criminal case that had taken place in this District Court, where there had been serious irregularities in the selection of the panel judges – even to the extent that the judges had been selected at a time when the previous judge had not yet been disqualified, and judges in previous cases had been selected by a stenographer who had not been authorised to do so. Back then, the President of the Court also rejected all doubts as to the legality of the empanelling of the judges, as well as all requests for disqualification, even though it was later found by the Court of Appeal that there had been a clear violation of the rules of court and that judges had been selected who had not been lawfully empanelled. According to the President of the Court’s explanation on Tuesday, it is likely that the judges were not lawfully assigned to this case, either, as the President of the Court was unable to explain how it came about that Andrej Volk and Suzana Žilić were already entered on the SR23 form on the 28th of May 2024, even though Melita Tratnik and Drago Turnšek had been assigned to the case before. The President of the Court answered the defence counsel’s (Janša) doubts about the composition of the Chamber selectively and incompletely.
What is most disturbing in the case, apart from Vovk’s political involvement and Suzana Žilić’s links with the Social Democrats party (Socialni Demokrati – SD) vice-president, is the fact that the court rules do not allow for the so-called stopping of the assignment of cases to a particular judge, or skipping judges for a reason, as the President of the Court put it (“absence for service reasons”), but exclusively know and define how a legitimate judge can be assigned. This is laid down in Article 175 of the Rules of Court, which does NOT allow the assignment of cases to be stopped without adequate explanations – which do not explain the criteria for deciding on the overload of someone, what constitutes being overloaded, since a contrario, the President of the Court is allowed complete discretion to judge for herself when someone is overloaded – and this without any act whatsoever. She simply, arbitrarily writes this down in the record of panel judges.
If this course of action were to be applied, it would simply allow abuse of the alphabetical system of judges and breaches of the principle of legality enshrined in the Constitution of the Republic of Slovenia, since it is quite clear that no one can be predetermined in advance, or by bypassing the rules, to sit as a judge in a particular case. In the present case, there is even a suspicion that the SR-23 form, which is used to determine the panel judges, was filled in by the administrator and not by the President of the Court. Matoz has therefore also proposed that the President of the Court, Petra Giacommelli, should be disqualified in view of the correspondence between her and the accused (from the 11th of June onwards), in which she has shown an arrogance of power by refusing to provide information in the face of several summons. Matoz believes that there are grounds for doubting her impartiality in this case, since she has clearly acted improperly in her selection of the panel judges.
The judge suspended the hearing and decided that the main hearing would resume once the grounds for disqualification had been decided on, pursuant to Article 42 of the Code of Criminal Procedure. The dates already fixed for the main hearings remain unchanged for the time being.
M. I.
