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sobota, 22 januarja, 2022

I Am the Court – At the Constitutional Court, Everyone Must Follow Pogačnik’s Orders

By: Sara Kovač / Nova24tv

An anonymous source has shared some information with us on what is happening at the District Court in Ljubljana under the leadership of Marjan Pogačnik. The same Pogačnik who made the life of now-former Constitutional Court judge Zvjezdan Radonjić miserable and helped make sure that Radonjić was labelled as personally unfit to perform judicial work. Of course, all of that happened because Radonjić’s personality was not to Pogačnik’s liking. On the other hand, those who met Pogačnik’s criteria were apparently even able to be promoted. For example, a judge who ruled that the son of the president of the Constitutional Court will only get house arrest – regardless of the gravity of his crime.

Some time ago, we already reported on how the president of the District Court in Ljubljana attacked Zvjezdan Radonjić. But apparently, what happened to the former Constitutional Court judge is not an isolated case. At its session on the 4th of March 2021, the Judicial Council found that Marjan Pogačnik had issued an oral order to a judge, whose files were confiscated, and she was then transferred to a lower court to work in a completely different field of law – and Pogačnik also ordered all of her hearings that had already been scheduled to be cancelled. However, the president of the Constitutional Court has no legal basis for the issuing of oral orders, and he also violated the law and the Constitution by illegally or unconstitutionally interfering with the judge’s independence, which is one of the fundamental constitutional postulates or a client’s right to be tried by a natural judge.

Despite such a serious violation by the president of the Constitutional Court, his dismissal was never requested. According to the Courts Act, the presidents of higher courts have the right to file a motion to dismiss a certain president, and they have to either prepare the required report themselves or at the request of the Judicial Council or the Minister for Justice (Article 64 of the Courts Act). As follows from the first paragraph of that article, the president of the court shall be dismissed from the position of president if he does not perform matters of judicial administration in accordance with regulations or criteria for the quality of work of courts or if he does not perform them on time; if he violates the rules or in any other way violates the principle of independence of judges in trials; if he violates or allows a violation of the regulations regarding the assignment of cases (Chapter 2 of the Act in question) and if the court that he presides over unjustifiably fails to achieve the planned business results, in accordance with the annual work programme of the court adopted by the president, for two consecutive years.

In Pogačnik’s case, the Judicial Council did not follow its own guidelines
In the case in question, the Judicial Council found that the president had violated point 2 of the first paragraph of Article 64 of the Courts Act, but nevertheless did not request that the president of the Ljubljana Higher Court prepare a report for the dismissal of the president of the Ljubljana District Court. Upon the dismissal of the former president of the District Court in Ljubljana, Andrej Baraga, who ordered the acquisition of a list of telephone calls made from a judge’s work phone without first obtaining an order from the investigating judge in order to protect the life of judge Katarina Turk Lukan, the Judicial Council wrote in its explanation of the decision for dismissal that with this decision the Judicial Council set the rules that it will apply in the future in all similar cases. In Pogačnik’s case, the Judicial Council did not follow these guidelines, nor did it follow Article 64 of the Courts Act.

Pogačnik rewarded certain judges, even if they did not do the work for their “raise”
Pogačnik also rewarded certain judges and assigned them to a specialised department, which deals with criminal cases of organised and economic crime, terrorism, corruption, and other similar crimes. He paid them salaries equal to those of Supreme Court judges and Supreme Court judges councillors, even though they worked on only 50 percent of the matters assigned to the specialised department. The list of these judges also included District Court judge councillor Polona Herman, who worked on cases related to minors, domestic violence, and sexual offences – but had not resolved a single case within the competence of the specialised department by the end of 2019 and 2020, but nevertheless kept on receiving the salary of the Supreme Court judge councillor. As a District Court judge, she should have been receiving the salary of 3,406.45 euros (54th pay grade), and due to her assignment to a specialised department, she instead received a salary of 4,434.60 euros (61st pay grade), which amounts to as much as 1,028.12 euros more a month. Specialised departments operate at the District Courts in Maribor, Celje, Nova Gorica and Ljubljana, with no court other than the Ljubljana District Court assigning judges to a specialised department with only a 50 percent burden but 100 percent of the salary.

The judge should not be chosen by a human but by chance
At the District Court in Ljubljana operated the so-called ad-hoc out-of-court senates, which were not formally regulated in any act, not even in the annual schedule of the judges, which allowed the chambers to be composed without any clear order. This, of course, violated the principle of the natural judge. The judge to whom the case had been assigned as rapporteur then chose the president and a member of the chamber, as he saw fit. Otherwise, the operating of the out-of-court senate should have been determined by the annual schedule, with half of the judges assigned to the senate, which met every Monday, and half to the panel, which held weekly sessions on Fridays. It was determined that the president of the senate is a judge who comes after the judge-rapporteur on the list of their surnames, and the member of the senate is a judge who follows the president of the senate on the list of their surnames. This ensured the legitimacy of the senates. However, these ad-hoc chambers were not governed by the annual schedule of judges and were composed in violation of this, as the judge-rapporteur chose the judge who participated in the senate by himself.

The president of the court ruled contrary to the Constitution and the law, but there was no reaction
The investigating judge instituted an investigation against Damijan Janković, and the defence counsel of the accused Janković appealed against the decision of the investigating judge. The senate decided on the appeal at its session, which was convened in accordance with the annual schedule; the president and a member of the senate were determined according to the rules of the annual schedule. The senate dismissed the appeal. Minutes of the consultation and voting were drawn up and signed by all members of the senate, and the decision of the senate was entered in the session book, as required by the rules of the court. However, following the decision, the case was reassigned to another judge-rapporteur, who appointed new members of the senate, which then re-decided on the appeal of the defendant Damijan Janković’s counsel and decided to uphold the appeal. The investigating judge, who received the file with both decisions of the out-of-court senate, demanded that the president of the court decide which decision of the panel applies in this case: the first, which rejected the appeal, which would mean that the investigating judge’s decision to initiate an investigation would become final, or the second one, which upheld the appeal, which would mean that the case had to be returned to the investigating judge to supplement the investigation.

The president of the court has ruled that the second and not the first decision applies, which is contrary to the Constitution and the law, as the president cannot decide on this. According to the law and the Constitution, the opposite should apply, meaning that the first decision, so the decision of the first senate, should have applied, as it had not been annulled. Thus, the second decision, so the decision of the second senate, should have had no legal effect at all and was illegal because the legal remedy – the appeal – had already been decided on, and thus, the decision to initiate an investigation already became final. Due to the decision of the president of the court, the specialised State Prosecutor’s Office should have reacted and demanded the initiation of an investigation, but this did not happen. Which can only mean one thing: that the president of the court agreed with the Prosecutor’s Office that no legal remedy would be filed or that clarification and control over a specific case would not be requested.

A judge was supposedly promoted because she only ordered house arrest for Pogačnik’s son
The son of the president of the Constitutional Court Marjan Pogačnik committed an armed robbery in 2017. He was defended by lawyer Dušan Csipo from Kranj, who is allegedly Pogačnik’s friend. Csipo is a former prosecutor in Kranj, and he also defended the former president of the Ljubljana District Court, Vesna Pavlič Pivk, in her criminal proceedings. Namely, Pavlič Pivk led the court during the Patria case and was also very critical of the decision of the Constitutional Court, which annulled the former’s judgment. The judge was later accused of irregularities in her work. So, due to the committed crime, a house search was ordered at Pogačnik’s address, and then house arrest was ordered – instead of the usual prison detention, which is extremely unusual in the case of a crime. Milena Turuk, who was the investigating judge at the Kranj District Court back then, is the person who ordered house arrest for Pogačnik’s son. Among other things, Turuk is known for teaching those who were preparing for the bar exam together with Marjana Logar – namely, future lawyers must enrol in an exam preparation course if they want to pass it.

After the proceedings against Pogačnik’s son were over, Turuk ran for the position of judge of the specialised department at the District Court in Ljubljana, but the judicial council did not elect her to this position. After that, Pogačnik, Janja Roblek and Damijan Florjančič agreed to nevertheless transfer Turuk to a specialised department of the District Court in Ljubljana for two years, but then extended the agreement for another two years. Several candidates applied for the position in the specialised department of the District Court – among them judge Sinja Božičnik, who was not elected due to her disobedient nature. Božičnik is an excellent judge who has the most confirmed rulings in her department. But obviously, this is not the criterion by which Pogačnik decides on his “chosen ones.”

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