Nepristranskost sodnika v odnosu do njegove civilnopravne imunitete

slovenian

2023

volume 49, issue 3/4

Lexpera d. o. o.
(Obvezni izvod spletne publikacije)

In the article, we deal with the issue of judicial impartiality. Firstly, we analyse the scope of judicial immunity. We wonder if it is absolute, or limited, when a judge intentionally abuses their judicial function. We believe that the latter, for which we offer several arguments. The first can already be found in Article 132 of the Constitution of the Republic of Slovenia, which defines the grounds for the termination and removal of a judge from their position; the second argument is the criminal offence of unlawful, biased and unfair trial according to Article 288 of the Criminal Code; and the third are the positions and decisions of our recent jurisprudence, which indicate that the stated dilemma has not yet been clearly resolved. In the second part, we analyse a specific criminal case, where two judges tried an individual, despite the fact that they were in a direct civil dispute with this individual. We believe that such a trial cannot be just and fair. On the one hand, because a criminal judge cannot remain completely impartial while simultaneously judging a criminal case and also being a defendant in separate civil proceedings in which the plaintiff is the defendant subject to the judge's decisions in criminal cases. On the other hand, because such a judge also has a personal financial interest in the trial, since the decision of the civil case will have a monetary impact on the judge as an individual, and this effect is also indirectly transferred to their decision-making in the criminal case. The impartiality of such a trial is thus not guaranteed, neither on objective nor on subjective level.

09.05.2024