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Sunday, May 28, 2023

Constitutional Court Judge Kogovšek Šalamon In A Conflict Of Interest Position – Will She Recuse Herself?

By: Andrej Žitnik (Nova24tv)

As we have previously reported, in an interview on the national media outlet, RTV Slovenia, the Prime Minister admitted to presenter Rosvita Pesek that the infamous and constitutionally controversial law on RTV Slovenia was written by the Legal Network for the Protection of Democracy (Pravna mreža za varstvo demokracije), a far-left NGO that was mainly concerned with migrants and how to import as many of them as possible into Slovenia in the past. And now, under the patronage of the Legal Network (i.e., the authors of the law), representatives of the Slovene Association of Journalists, the Peace Institute, the PIC Centre and the Open Institute have submitted an intervention to the Constitutional Court on aspects of the constitutionality review of the amendment to the Radio-Television Slovenia Act. However, this brought up an even more controversial issue – the Legal Network has been cooperating with the Peace Institute when submitting petitions on the law in question, so how is it possible that the law was decided on by the Constitutional Court judge Neža Kogovšek Šalamon, who is still partly employed by the Peace Institute, while the Constitutional Court is now deciding on the constitutional review of the Radio-Television Slovenia Act? The petitioners also requested that the judge, who is also a member of an NGO, be disqualified.

As we have already reported, the representatives of the NGOs who tablet the intervention wrote that “the government’s amendment of the Radio-Television Slovenia Act is necessary because the encroachment of political power holders on media freedom and the public’s right to information at RTV Slovenia has become so radical that the public interest can only be protected by changing the governance model without any further delays.”

The intervention is, of course, a tool of political pressure on the Constitutional Court and has no real legal force, as the petitioners admit, saying that “they would also like to see the intervention be tabled by someone else, such as the Human Rights Ombudsman, who also has “legal grounds” for doing so”. “The National Assembly is a party to the proceedings before the Constitutional Court, so in a way, we would expect the National Assembly to be more intensively involved in the proceedings before the Constitutional Court,” said left-wing activist Barbara Rajgelj.

In all the political farce about the intervention, an interesting legal question has emerged: how is it possible that Neža Kogovšek Šalamon, who is still employed at the Peace Institute, is still involved in the constitutional review of the Radio-Television Slovenia Act? The Peace Institute and the Legal Network (which wrote the law) also cooperate fruitfully in submitting political petitions to the Constitutional Court.

When should a Constitutional Court judge be disqualified?

Article 31 of the Constitutional Court Act states that, when deciding on a particular case, the Constitutional Court may disqualify a Constitutional Court judge under the reasonable application of the grounds for disqualification in proceedings before the courts. The Constitutional Court Act therefore refers to the Civil Procedure Act, which regulates the grounds for disqualification in detail, but which provides that a judge or a juror may not hold judicial office:

  1. if he or she is a party, or the party’s legal representative or proxy, if he or she is in the relationship of a co-plaintiff, co-defendant or recourse with a party, or if he or she has been heard as a witness or expert in the same case;
  2. if he is permanently or temporarily employed by the party or if he is a partner in a general partnership, limited partnership or limited liability company or a silent partner in a silent partnership which is a party to the proceedings;
  3. if the party or his or her legal representative or agent is related by blood to the judge in the first degree of consanguinity, no matter how many times removed, and in the second degree of consanguinity to four times removed, or by marriage or affinity to twice removed, whether or not the marriage has been dissolved;
  4. if he or she is the guardian, adoptive parent or adoptee of the party, his or her legal representative or attorney;
  5. if he or she has participated in proceedings before a lower court, arbitration or other body in the same case;
  6. If there are other circumstances which call his impartiality into question.

A judge is obliged to disqualify himself or herself ex officio if he or she establishes the existence of any of the reasons listed above (blood relationship, marriage, affinity, participation in the proceedings, etc.). However, if there are other circumstances, which are defined in the law only by a general clause, which would cast doubt on his or her impartiality (friendship, enmity, distant relation, etc.), the impact of these grounds on the judge’s impartiality must be assessed on a case-by-case basis.

The judge should recuse herself on the very appearance of impartiality

In this case, it is clear that Judge Neža Kogovšek Šalomon, who is still employed at the Peace Institute, is (at least) on friendly terms with the Legal Network, which, together with her employer, is bringing the so-called intervention of the Radio-Television Slovenia Act before the Constitutional Court. In order to ensure objective impartiality, it is not only necessary that the judge is subjectively impartial, but also that there is not even the appearance that he or she could be impartial (hence the legal diction of friendly relations). This is the so-called principle of objective appearance of impartiality.

In this context, it is clear that Constitutional Court Judge Kogovšek Šalamon, who is even employed by one of the co-sponsors of the intervention on the law (in addition to those who wrote the law themselves), should have recused herself from the proceedings before the proceedings even started – just like Rok Čeferin, whose office worked with a party to the proceedings.

We asked the Constitutional Court why the Constitutional Court judge did not recuse herself from the proceedings on the constitutionality of the Radio-Television Slovenia Act – if only for the sake of appearing to be objectively impartial if she is still employed by the Peace Institute, which (together with the writers of the law, the Legal Network) is filing the so-called intervention in favour of the government’s amendment to the Radio-Television Slovenia Act. We have not yet received a reply.

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