By: M. I. (Nova24tv.si)
A hearing was held at the District Court in Celje against the opposition leader Janez Janša in relation to the Trenta case (or as some call it, Patria 2). The specialised state prosecution is pursuing charges against Janša and two alleged accomplices for alleged abuse of position or rights. The trial is being conducted against Janša, former CEO of Imos Branko Kastelic, and former director of Eurogradnje Klemen Gantar. The process began quite farcically, as the judges were unable to explain whether the panel was legally constituted. Janša’s attorney, Franci Matoz, also revealed the political connections of both lay judges with leftist politics and demanded their disqualification.
Right at the beginning, Janša’s attorney Franci Matoz questioned the legality of the panel’s composition, asserting that it was not constituted in accordance with the second paragraph of Article 298 of the Criminal Procedure Act, which addresses the legality of the panel’s composition.
He referred to the provisions of Articles 175 and 157 of the judicial order and clearly explained why the judicial panel was not legally constituted. He stated that, as the defence attorney in the specific case, he had consistently tried to verify the legality of the panel’s composition. To this end, after the hearing was scheduled, on June 11th, 2024, he addressed a request to the chair of the panel for an explanation of the panel’s selection process (i.e., the judge and the jurors). He demanded the minutes to verify the method of file allocation from the recused judge Marko Grišnik to the current panel chair, Judge Cvetka Posilovič. He also requested the submission of form SR23, which is used to determine the jurors.
On June 14th, the chair of the panel responded, explaining that Judge Grišnik had been recused. The judge also informed him that jurors Andrej Vovk and Suzana Žilić were appointed in alphabetical order. It was also clarified that the recusal file of Judge Brišnik was initially assigned to Judge Mojca Gorinek, who then proposed her own recusal, leading to the file being assigned to Judge Posilovič.
The president of the Celje District Court, Petra Giacomelli, decided on the appointment of the panel chair and the jurors. However, Matoz did not receive adequate explanations from her regarding the panel’s composition. Furthermore, the justification from the court president included form SR23 on the appointment of jurors, which was not compiled by the court president herself. There was still no explanation of how the case was assigned to Judge Posilovič. Only an extract from the electronic registry listing all judges in the criminal department of the Celje District Court was provided.
In response to Matoz’s repeated requests, the court president explained that she selected the jurors according to the alphabetical order, as evidenced by form SR23. Regarding the legality of the file assigned to Posilovič, no explanation was provided, only an abstract statement that the legal order was respected in this specific case, and the case was assigned to a judge, who might not necessarily be the next in line as they could be busy with another case. The court president’s explanation seemed to obscure the real reasons for choosing this specific judge and jurors.
Jurors were skipped over
Matoz pointed out that the judicial order requires jurors to be selected in alphabetical order. The partial extract of assigned cases to jurors and the court president’s explanation indicated that jurors were skipped over before the current jurors. On June 29th, 2024, juror Zmago Turnšek was appointed, before him was Brigita Tratnik for the same case, and since the next in line was Andrej Vovk, he was appointed as Milan Vogrinc’s assignment was stopped due to overload, while there were three jurors on the list who deal with juvenile cases. Next in line was juror Marija Železnik, who was overloaded, and then it was Suzana Žilić’s turn, who was also appointed for this case. This indicates clear and unexplained skipping of jurors, which raises serious doubts, if not outright evidence, about the illegality of the panel’s composition, derived from the partial extract of juror assignments. The excuse was that some judges were overloaded.
Matoz could not explain why juror Zmago Turnšek, who was allegedly overloaded, was assigned another case (Rimska 3) if he was indeed overloaded (the jury for the Trenta case was determined on May 28th, while Turnšek was selected for the Rimska 3 case on May 29th).
From this, it follows that on May 28th, juror Zmago Turnšek should have been next in line, as well as Melita Tratnik, since both were determined on May 28th, 2024, and were ahead of Vovk and Žilić in the alphabetical order. This indicates that the alphabetical order mandated by Article 175 of the judicial order was skipped, and both jurors were not appointed according to the judicial order. Therefore, Matoz believes the panel’s composition is illegal. Matoz emphasised that illegal panel composition has already occurred at the same court.
Matoz warned that at this very court, the higher court had previously noted a serious violation in appointing jurors bypassing the judicial order in another criminal case where he also represented Janez Janša. Additionally, the higher court had stated that jurors were selected by an unauthorised person. Hence, Matoz proposed questioning the court president, as the appointment of jurors is under her jurisdiction, and her provided explanation was insufficient since the facts suggested otherwise. She also failed to explain how the case transitioned from Judge Grišnik to Judge Posilovič and why the alphabetical order was skipped for jurors. Matoz pointed out that there are 15 judges alphabetically between Grišnik and Posilovič, but there was no explanation for this significant skip, which is a clear violation of the judicial order.
The judge overlooked her duty
The judge argued with Matoz, claiming she had no role in selecting herself or the jurors, but Matoz calmly explained that the judge must first determine the legality of the panel’s composition, regardless of the court president’s assignments. He emphasised that his request was not meant to delay the proceedings, as he had made the same request in nine previous letters to the court president, demanding an explanation for the selection of jurors and the panel chair, and specifically why the alphabetical order was skipped.
Tension between Matoz and Judge Posilovič
A heated exchange ensued between Matoz and Judge Posilovič, who began shouting at Matoz, insisting that she had no role in the panel’s composition and directed him to the registry to verify the assignment details as he wished. She then adjourned the session for 20 minutes. Matoz retorted that this was not elementary school to be “sent off” somewhere and stated that he would not decipher the registry himself, as it is the court’s duty to ensure the panel’s legality, not the defence’s. He clearly stated that if the judge believed the panel was legally constituted, he would use other legal means and again proposed questioning the court president, Petra Giacommelli, since the process is public, and it would be inappropriate to review documents in some office outside of public view. Eventually, the panel chair relented, adjourned the session, and called on the court president, Petra Giacommelli, to explain her side regarding the selection of judges and jurors.
Giacommelli’s unconvincing explanation on judge selection
After the recess, the president of the Celje District Court, Petra Giacommelli, appeared to clarify the ambiguities regarding judge assignments but seemed to stumble suspiciously and generally sounded very unconvincing.
She explained that they keep records for juror judges on where they have already been assigned. If a juror is overloaded, they skip them and move on to the next one. When Matoz asked who determines if a juror is overloaded, she replied that she does. When Matoz inquired about a specific juror, she said she could not say offhand but always selects a juror who is not overloaded. “Were both jurors – Tratnik and Turnšek – overloaded?” Matoz asked, but he did not receive a satisfactory answer.
Regarding the assignment of Judge Posilovič, President Giacommelli stated that they have an annual schedule of judges’ work, and for specialised cases (XK), three judges (Turinek, Brišnik, Posilovič) are assigned. The other two were excluded, leaving only Posilovič.
Matoz asked if the list could be checked in alphabetical order. The court president responded that it could, and he then questioned why this had not been done before. The court president claimed that the record is electronic and that she “cannot show it” (perhaps she has not heard of printouts and file exports …).
Matoz insisted that a written explanation be provided detailing how the judges were assigned so that he could personally verify whether they were indeed selected in alphabetical order. He also inquired whether there was any internal regulation specifying when a juror is considered overloaded. The judge admitted that no such regulation exists and that the judicial order does not stipulate this either. Thus, it is at her discretion to decide when a juror is overloaded.
The Judge adjourned the session until 13:00
Matoz and the other defence attorneys were not satisfied with the explanations provided by the court president. They insisted that the oral explanation be submitted in writing to verify the legality of the senate’s assignment. Matoz highlighted that the court president could have already provided electronic records of cases (procedural acts) received on specific days to show whether the alphabetical order of judges was respected, which had not been clarified until now. Even today, she only knew the case numbers of the procedural acts, not the surnames or initials of the individual defendants (or parties). Without this information, the legality of the senate president’s assignment cannot be verified.
Regarding the selection of lay judges, Matoz argued that the criteria for determining when they can be skipped due to overburdening were not explained. While such criteria are clearly defined in the judicial order for judges, Article 175 of the judicial order states only that an approximately equal workload should be maintained among lay judges, without specifying who has the discretion to decide on overburdening.
Given that two jurors were listed before those eventually selected, Matoz emphasised the need to explain the basis and process for determining the overburdening of jurors. This should have been documented either through an order or in the schedule, which was not the case.
Matoz asserted that the conditions for proceeding with the hearing were not met until these explanations were provided in writing. The defence attorneys for the co-accused (Hrvatin and Fišer) supported the request for obtaining the relevant data and documents on the allocation of jurors and the criteria used, including the basis for the court president’s assessment. Consequently, the presiding judge adjourned the session until 13:00.
Matoz revealed that the two lay judges are politically biased
The court president prepared a written explanation of how the panel was composed, which the defendants’ advocates will review later. Matoz wanted to question the lay judges regarding the circumstances of Article 39, Point 6 of the Criminal Procedure Act, starting with Andrej Vovk:
Was he a member of any political party? (He had previously stated that he was a member of Naša Dežela.) He said that in his youth, he was a supporter of the LDS party, but he never ran for office. Is it true that he ran for the municipal council of the Municipality of Šoštanj on the LDS list in 2006? He said it was a long time ago, that it is possible, and he does not remember anymore. He said he was never a member of the party but sympathised with it.
Lay Judge Žilić admitted to knowing the justice minister Andreja Katič
Then, lay judge Suzana Žilić was asked if she knew the current Justice Minister, Mrs. Katič. She admitted that she knew her and that they had worked together in the municipal administration of the Municipality of Velenje. When she joined the municipality, she was the director of the municipal administration. In the meantime, Katič became a minister and was not at the municipality; later, she was an advisor to the mayor of the same municipality until she became a minister again. However, she stated that she is not friends with the minister. Matoz asked her if Katič organised a celebration at the municipality when Mr. Janez Janša went to prison in the Patria case. She said she was not aware of it. He also asked if Mrs. Katič appointed her to any position when she was the director. Did Director Katič appoint her as the head of the legal department? Žilić said she did not remember. She claimed that she never discussed the current proceedings with Katič.
Matoz demanded recusal of lay judges after hearing
After the questioning, Matoz proposed the recusal of both lay judges, as there are circumstances that raise doubts about their impartiality. Considering the general distinction in the doctrine of the European Court of Human Rights (ECHR), which our constitution has also adopted, regarding the establishment of an objective appearance of impartiality and the undermining of the actual doctrine of impartiality, he would refer to the ECHR concerning the selection of impartial lay judges. A lay judge can only be someone who, based on objective circumstances, cannot have a pre-existing interest in certain decisions (Holmes v. Sweden). A jury member is only selected if they have no prior interest in any direction and if there is no external appearance of such an interest. Because of such an appearance, the European Court has also judged in connection with the political affiliation of a jury member when it comes to judging a politician. The same applies in this case. Lay judge Andrej Vovk was a candidate for the municipal council on the LDS list, which at that time and even today (integrated into the Gibanje Svoboda party) is an active and strong opponent of the SDS party and its president Janez Janša.
It does not need special argumentation. Any active involvement in a political option naturally leads to the fact that such a lay judge cannot be impartial objectively or subjectively. Every reasonable doubt must be excluded that the court would decide impartially in this regard.
Vovk was an LDS supporter
Given the fact that lay judge Vovk confirmed that in 2022 he ran as a candidate for the party Naša Dežela in the Velenje electoral district, it is quite likely that he is actively political, actively involved in politics, and undoubtedly already has a belief by nature, whether positive or negative towards the accused – with Matoz assuming that the opinion towards the accused is probably negative since he collaborated with LDS.
Žilić appointed by Katič
Similarly, Matoz mentioned the case of Žilić. As she herself testified, during her tenure as the director of the municipal administration, the current Minister of Justice, Katič, appointed her as the head of the legal department. Although she does not know who formally signed the contract, it is indisputable that during that time she was in a subordinate relationship to Katič. Given that numerous articles and quotes from Katič’s public appearances can be found on the internet, where she often attacks the direction of the SDS party and its president Janez Janša (sometimes even speaking disparagingly about him), it is clear to the defence attorney that the cooperation between Žilić and Katič violates the objective appearance of impartiality.
Therefore, Matoz believes that there are grounds under Point 6 of the first paragraph of Article 39 of the Criminal Procedure Act for the recusal of both lay judges, as they cannot impartially judge this criminal case.
Arbitrary actions of court president Giacomelli – Matoz seeks her recusal
Regardless of today’s explanation by District Court President Petra Giacomelli about the composition of the panel, Matoz believed that there are significant doubts about the legality of the panel’s composition. He pointed out that this had already happened in a previous criminal case at this district court, where there were serious violations in the appointment of lay judges – such as appointing a lay judge while the recusal of a previous judge had not yet been decided, and in previous cases, the minute-taker, who was not authorised to do so, made decisions. At that time, the court president also rejected all doubts about the legality of the appointment of lay judges, as well as all requests for recusal, even though the appellate court later found that the judicial order had evidently been violated and that judges who were not lawfully appointed had presided. Based on today’s explanation by the court president, it is likely that the judges were not appointed lawfully, as the court president could not explain how Andrej Volk and Suzana Žilić were entered on the SR23 form as of May 28th, 2024, although Melita Tratnik and Drago Turnšek were supposed to be appointed. The court president answered the defence’s doubts about the composition of the panel selectively and incompletely.
The most troubling aspect of the case, besides Vovk’s political involvement and Žilić’s connections with the Vice President of the Social Democrats, is the fact that the judicial order does not allow for the so-called stopping of the assignment of cases to individual lay judges or skipping lay judges for reasons such as the court president mentioned (“being busy with work”). Instead, it exclusively stipulates and defines how a lawful judge can be appointed. Article 175 of the Judicial Order does NOT allow for the suspension of case assignments without appropriate explanations – which do not clarify the criteria for excessive workload or what excessive workload means, as it allows the court president complete discretion to assess when someone is overloaded – and this without any official act. This is simply and arbitrarily recorded in the register of lay judges.
If such a method were to be valid, it would allow for a simple abuse of the system of judges and defenders according to alphabetical order and violations of the principle of legality from the Constitution of the Republic of Slovenia, as it is quite clear that no one can be pre-determined or appointed outside the rules to judge in a certain case. In this case, there is even a suspicion that the SR-23 form, which determines lay judges, was filled out by an administrator rather than the court president. Therefore, Matoz also proposed the recusal of the court president, Petra Giacomelli, based on correspondence between her and the accused (since June 11th), where she demonstrated authoritative arrogance by not providing information despite multiple urgencies and requests. Matoz believes that there is a well-founded doubt about her impartiality in this case, as she evidently appointed the lay judges wrong with her actions.
The judge interrupted the hearing and decided that the main hearing would continue once a decision on the grounds for recusal under Article 42 of the Criminal Procedure Act is made. The dates for the main hearings remain unchanged for now.
