By: Peter Truden
Last week, the panel of judges in the case against journalist Bojan Požar ordered his detention for failing to attend the hearing to which he had previously been invited. The detention order was later overturned, and Požar remains outside of detention for now. Meanwhile, his lawyer has already filed a motion to remove Senior Judge Igor Mokorel – the President of the panel of judges in the case in question, as well as Senior Judge Rapporteur Katarina Turk Lukan and Senior Judge Boris G. Horvat, from the complaint proceedings in the case of a private lawsuit of plaintiff Todorovič against Požar.
The Matoz Law Firm has filed a request with the Ljubljana Higher Court to expel Senior Judge Igor Mokorel – the President of the panel of judges in the case in question, as well as Senior Judge Rapporteur Katarina Turk Lukan, and Senior Judge Boris G. Horvat, from the complaint proceedings against journalist Bojan Požar, as the three judges in question filed a detention order for Požar because he did not attend the hearing to which he was invited. However, the decision was later overturned.
“Defendant Bojan Požar was acquitted of the alleged crime before the court of the first instance in this case. Several sessions of the Appeals Chamber were called, which were then postponed due to the absence of the judges of the Chamber,” the Matoz Law Firm pointed out in its request for the exclusion of the three disputed judges. “At the session on the 22nd of February 2022, where the participation of the accused was not obligatory, the senate adopted a decision to hold an appeal hearing and sent an invitation to a hearing to the defendant, which was then held on the 16th of March 2022. However, the defendant did not attend the hearing, as his participation was not obligatory.”
The Matoz Law Firm pointed out that the panel of judges, consisting of Mokorel, Turk Lukan and Horvat, ordered the arrest of the accused at their session on the 23rd of March 2022, “but the defendant was not brought in that day, despite the fact that he was at his home address that day.” After the panel of judges ordered Požar’s detention, the decision on his detention was served to the defendant by an ordinary post, and he appealed against the decision. On the 25th of March 2022, the Supreme Court “upheld his appeal, and also annulled the illegal decision and lifted the detention.”
“Given the unlawfully ordered detention in the appellate case, where the accused was acquitted, the big response from the media, and criticism of the political background of the planned detention, we believe that there are reasonable grounds for doubt in the impartiality of all three judges who are members of the panel,” the Matoz Law Firm wrote. The circumstances of the proceedings suggest that in Požar’s case, the proceedings were initiated with the intention of “removing him from public life as a journalist for the duration of the election campaign.”
In the last five years, not a single detention order has been issued in cases similar to this one
The law firm also pointed out that, in the opinion of the European Court of Human Rights, both subjective and objective criteria need to be taken into account when deciding on the existence of impartiality in a trial. It is, therefore, a matter of establishing the personal conviction of the judge and assessing whether the judge in the proceedings ensures the exercise of procedural guarantees in such a way that any reasonable doubt of his possible impartiality is ruled out. Any appearance of impartiality in the case against Požar disappeared the moment the trio issued an illegal detention order.
Požar also pointed out that the Higher Court in Ljubljana had officially acknowledged that for the last five years, it had “not ordered any detention in similar cases, not even against those who were not present at the mandatory court hearings (!), while the hearing in the case of Bojan Požar was not mandatory, which was also confirmed by the Supreme Court.”