Article 41 - Right to good administration
Article 47 - Right to an effective remedy and to a fair trial
Article 52 - Scope and interpretation
Key facts of the case:
The plaintiff, a judge, was temporarily suspended in August 2020 from the judicial service by the Vice-President of the Supreme Court until the final decision of the competent authority in disciplinary proceedings. The Vice-President noted that three motions for disciplinary sanction had been filed against the plaintiff for several breaches of judicial duty, namely for acting in a manner that violated the reputation of the judicial profession. Given the nature and gravity of the alleged actions, they assessed that the suspension was necessary in order to ensure the smooth operation of the relevant District Court and to protect the reputation of the judicial profession and public confidence in the judiciary. Upon the plaintiff's appeal, the Judicial Council of the Republic of Slovenia upheld the Vice-President's decision in September 2020. In February 2021, the plaintiff filed a lawsuit in an administrative dispute against the Vice-President and the Judicial Council. The Supreme Court heard the case. The plaintiff alleged substantial breaches of procedural rules, incompletely established facts and misapplication of substantive law. Among others, they claimed that they were denied the right to be heard before suspension by the Vice-President of the Supreme Court and later by the Judicial Council. In this regard, they proposed that a preliminary question be referred to the Court of Justice of the European Union. They also questioned the alleged erroneous application of substantive law as regards the Judicial Council's view that EU law only guarantees a judge's external independence, namely protection from external pressures and not from pressures within the judiciary. To this end, they suggested that the Supreme Court refer a question to the Court of Justice of the European Union in order to clarify this issue. The plaintiff further alleged erroneous findings of fact based on the presumption that their further performance of the judicial function constituted an obstacle to the smooth functioning of the judiciary, and because no one assessed how their conduct had allegedly damaged the reputation of the judiciary.
Key legal question raised by the Court:
Among others, the Supreme Court had to answer whether the plaintiff's right to be heard was violated and whether their claims regarding the alleged erroneous application of substantive law as regards the Judicial Council's view that EU law only guarantees a judge's external independence were justified. In this regard, it had to also decide on the referral of preliminary questions submitted by the plaintiff to the Court of Justice of the European Union. The plaintiff proposed two questions, namely: 1) `Shall it be in line with the provision of Article 47 of the CFREU if a judge is suspended without first being heard, as, relating to the case of the waiver of immunity, follows from the judgment of the Court of Justice C-381/18P of 18 June 2020`; and 2) `Shall the provision of Article 47 of the CFREU be interpreted in such a way as to guarantee only the external independence of the judge, or is it to be interpreted in such a way as to also guarantee the internal independence of the judge, including the protection of judges against pressure within the judiciary?` The court had to also give its opinion on the plaintiff’s claims regarding alleged erroneous findings of fact based on the presumption that their further performance of the judicial function constituted an obstacle to the smooth functioning of the judiciary, and a lack of an assessment of how their conduct had allegedly damaged the reputation of the judiciary.
Outcome of the case:
Regarding the right to be heard, the court noted, among other things, that it is guaranteed in administrative proceedings, as Article 9 (1) of the General Administrative Procedure Act stipulates that before a decision is issued, the party shall be given the possibility to be heard on all facts and circumstances relevant for the decision. The court, however, also noted that this right is not absolute. The General Administrative Procedure Act, for example, provides for exemption from the principle of hearing a party in the case of summary fact-finding proceedings (Article 144), In the case at hand, according to the court, it should be also taken into account that the suspension is a special measure of the judicial administration, whereby the hearing of a party is not envisaged in the Judicial Service Act or the Judicial Council Act. The condition for the imposition of suspension in the present case was the filing of a motion to initiate disciplinary proceedings, and such motions had been submitted. The motions state what the alleged infringements are, so, in order to guarantee their rights, it was not necessary to hear the plaintiff to establish facts, as they were not disputed between the parties. With regard to the first question proposed by the plaintiff for referral to the Court of Justice of the EU, the Supreme Court noted that limitations on the exercise of the rights recognised by the EU Charter, including the right to be heard as recognised in its Article 41, are permitted by the Charter itself, with Article 52 (1) requiring that any limitation is provided for by law and respects the essence of a particular fundamental right. The Supreme Court further noted that it itself granted the plaintiff’s right to be heard at the main hearing, so the position of the Court of Justice on this issue was not relevant to deciding this case.
As regards the plaintiff's claims relating to the alleged erroneous application of substantive law and the Judicial Council's view that EU law only guarantees a judge's external independence. According to the Supreme Court, the independence of a judge can only be guaranteed if they are not subject to any pressure aimed at influencing their decisions - neither from outside nor from within the judiciary itself. The Supreme Court found that It did not follow from the challenged decision issued by the Judicial Council, not even implicitly, that the council did not recognise the internal independence of a judge. According to the court, there was thus no need for a preliminary ruling from the Court of Justice on this issue either.
The plaintiff also claimed erroneous findings of fact based on the presumption that their further performance of the judicial function constituted an obstacle to the smooth functioning of the judiciary, and because no one assessed how their conduct had allegedly damaged the reputation of the judiciary. In this context, the Supreme Court explicitly stressed that the present case did not involve deciding on the disciplinary liability of the plaintiff and did not determine whether the plaintiff's conduct constitutes disciplinary violations, but whether the allegations resulting in disciplinary proceedings justified suspension. To this end, the Supreme Court noted, among other things, that proposals for disciplinary proceedings included claims of several similar violations of more serious nature committed by the plaintiff (e.g. inappropriate, undignified or insulting behaviour or language directed towards individuals, state authorities and legal persons relating to the performance of judicial service or to outside matters; failure to perform judicial duties or to unjustifiably refuse to perform them; conduct or action of a judge contrary to the independence of the judiciary or that is damaging to the reputation of the judicial profession). According to the court, the allegations that led to the initiation of disciplinary proceedings and consequently the suspension of the plaintiff were not made because the plaintiff’s public disclosure of the alleged irregularities and of pressures on them, but mainly because of the manner in which they acted. The Supreme Court found that the plaintiff’s alleged actions included several uncompromising and direct verbal attacks on individual judges, prosecutors and important institutions in the judiciary as well as other persons outside the judiciary, refusal of judicial duties as well as certain actions damaging to the reputation of the judicial profession .
The Supreme Court thus denied the plaintiff.
“23. With regard to the right to be heard, the plaintiff is unjustifiably referring to the decision of the Court of Justice of the EU in case C-831/18P (the action erroneously cites it as C-381/18P) of 18 June 2020, which is not comparable. This case considered the violation of the right to be heard under Article 41 of the Charter of Fundamental Rights of the European Union (hereinafter CFREU) which within the framework of `the right to good government` lists the rights (the right to be heard, among others) which must be guaranteed to everyone before the Union institutions, bodies, offices and agencies.”
“24. The principle of hearing the party applies in administrative proceedings, as the first paragraph of Article 9 of the ZUP* stipulates that before a decision is issued, the party shall be given the possibility to be heard on all facts and circumstances relevant for the decision. However, the party's right to be heard is not absolute9. In the present case, it should be taken into account that the suspension is a special measure of the judicial administration, for the imposition of which legal conditions are determined unilaterally, and the statement (hearing) of the party is not envisaged in the Judicial Service Act (hereinafter ZSS**) or ZSSve***. The condition for the imposition of suspension in the present case is the filing of a motion to initiate disciplinary proceedings10. Such a proposal, namely proposals have been submitted. They state what the alleged infringements are, so, in order to guarantee their rights, it was not necessary to hear the plaintiff to establish these facts (which are not disputed between the parties). Whether the alleged disciplinary offenses are of such gravity and character as to justify the imposition of a suspension is not a factual but a legal question.” (Please see the translated footnote below.)
(...)
“30. The action also alleges a substantial breach of procedure because the Judicial Council did not submit to the Court of Justice a preliminary question regarding the application of Article 47 of the CFREU. The Judicial Council is not a body entitled to refer a question to the Court of Justice of the EU, as this possibility is only given under Article 267 (2) of the Treaty on the Functioning of the European Union (hereinafter TFEU) and Article 113a (1) of ZS**** to the national court, or is imposed as a duty on it (Article 267 (3) of TFEU and Article 113a (2) of ZS).”
“44. The plaintiff proposed two questions, namely: 1) `Shall it be in accordance with the provision of Article 47 of the CFREU if a judge is suspended without first being heard, as, relating to the case of the waiver of immunity, follows from the judgment of the Court of Justice C-381/18P of 18 June 2020`; and 2) `Shall the provision of Article 47 of the CFREU be interpreted in such a way as to guarantee only the external independence of the judge, or is it to be interpreted in such a way as to also guarantee the internal independence of the judge, including the protection of judges against pressure within the judiciary?`”
“45. With regard to the first question, the Supreme Court notes that limitations on the exercise of the rights recognised by the CFREU, including the right to be heard as recognised in its Article 41, are permitted by the Charter itself, with Article 52 (1) requiring that any limitation is provided for by law and respects the essence of a particular fundamental right. As previously explained (Point 24 of the reasoning), the right of a party to be heard in administrative proceedings is not absolute. In addition, in the proceedings before the Supreme Court, the plaintiff’s right to be heard was granted at the main hearing, so the position of the Court of Justice on this issue is not relevant to deciding this case.”
“46. With regard to the second question, it has already been clarified that there is no doubt that a judge must be guaranteed independence from any pressure, external or internal, and must be protected from it whether it comes from outside or within the judiciary22. Therefore, there is no need for a preliminary ruling from the Court of Justice on this issue either.”
“9ZUP*, for example, provides for exemption from the principle of hearing a party in the case of summary fact-finding proceedings (Article 144) and the CFREU also allows for limitations on the exercise of the rights recognised by this Charter, including the right to be heard as recognised in its Article 41, whereby Article 52 (1) of the Charter requires that any limitation is provided for by law and respects the essence of a particular fundamental right.”
22It does not follow from the challenged decision, not even implicitly, that the Judicial Council does not recognise the internal independence of a judge.
* ZUP – Zakon o splošnem upravnem postopku; Slovenia, The General administrative procedure act (Zakon o splošnem upravnem postopku), 16 September 1999, and subsequent modifications. **ZSS – Zakon o sodniški službi; Slovenia, The Judicial service act (Zakon o sodniški službi), 30 March 1994, and subsequent modifications. *** ZSSve – Zakon o sodnem svetu; Slovenia, The Judicial Council act (Zakon o sodnem svetu), 25 April 2017, and subsequent modifications. ****ZS – Zakon o sodiščih; Slovenia, The Courts act (Zakon o sodiščih), 24 March 1994, and subsequent modifications.
“23. Tožnik se v zvezi s pravico do izjave neutemeljeno sklicuje na odločitev Sodišča EU v zadevi C-831/18P (v tožbi se pomotoma navaja C-381/18P) z dne 18. 6. 2020, ki ni primerljiva. V tej zadevi je bila obravnavana kršitev pravice do izjave iz 41. člena Listine Evropske unije o temeljnih pravicah (v nadaljevanju LEUTP), ki v okviru `pravice do dobrega upravljanja` našteva pravice (med njimi tudi do izjave), ki morajo biti vsakomur zagotovljene pred institucijami, organi, uradi in agencijami Unije.”
“24. V upravnem postopku velja načelo zaslišanja stranke, saj je v prvem odstavku 9. člena ZUP* določeno, da je treba, preden se izda odločba, dati stranki možnost, da se izjavi o vseh dejstvih in okoliščinah, pomembnih za odločbo. Vendar pa pravica stranke do izjave ni absolutna9. V obravnavani zadevi je treba upoštevati, da je suspenz poseben ukrep sodne uprave, za izrek katerega so enostransko določeni zakonski pogoji in izjava (zaslišanje) stranke ni predvidena niti v Zakonu o sodniški službi (v nadaljevanju ZSS) niti v ZSSve. Pogoj za izrek suspenza v obravnavani zadevi je vložitev predloga za uvedbo disciplinskega postopka10. Tak predlog oziroma predlogi so bili vloženi. V njih je navedeno, katere so očitane kršitve, zato za ugotovitev tega dejstva (ki med strankama ni sporno) tožnika zaradi zavarovanja njegovih pravic ni bilo treba zaslišati. Ali imajo očitane disciplinske kršitve takšno težo in značaj, da utemeljujejo izrek suspenza, pa sicer ni dejansko, temveč pravno vprašanje.” (Please see the translated footnote below.)
“30. V tožbi je bila očitana bistvena kršitev postopka tudi zato, ker glede uporabe 47. člena LEUTP Sodni svet Sodišču EU ni postavil predhodnega vprašanja. Sodni svet ni organ, ki bi bil upravičen nasloviti na Sodišče EU vprašanje za predhodno odločanje, saj je ta možnost po drugem odstavku 267. člena Pogodbe o delovanju Evropske Unije (v nadaljevanju PDEU) in prvim odstavkom 113.a člena ZS oziroma dolžnost (tretji odstavek 267. člena PDEU in drugi odstavek 113.a člena ZS) dana oziroma naložena le nacionalnemu sodišču.”
“44. Tožnik je predlagal postavitev dveh vprašanj, in sicer: 1) `Ali je v skladu z določbo 47. člena LEUTP, če se sodniku izreče suspenz, ne da bi bil poprej zaslišan, kot za primer odvzema imunitete izhaja iz sodbe Sodišča EU C-381/18P z dne 18. 6. 2020`; in 2) `Ali se določba 47. člena LEUTP razlaga tako, da jamči zgolj in samo zunanjo sodnikovo neodvisnost, ali pa jo je treba razlagati tako, da jamči tudi notranjo sodnikovo neodvisnost, ki vključuje varstvo sodnika pred pritiski znotraj pravosodja?`”
“45. Glede prvega vprašanja Vrhovno sodišče ugotavlja, da omejitve pri uresničevanju pravic, ki jih priznava LEUTP, vključno s pravico do izjave, priznane v njenem 41. členu, dopušča listina sama, pri čemer v prvem odstavku 52. člena zahteva, da je vsaka omejitev predpisana z zakonom in da spoštuje bistveno vsebino posamezne temeljne pravice. Kot je bilo predhodno že pojasnjeno (24. točka obrazložitve), pravica stranke do izjave v upravnem postopku ni absolutna. Poleg tega pa je bila v postopku pred Vrhovnim sodiščem tožniku na glavni obravnavi dana možnost izjave, zato stališče Sodišča EU o tem vprašanju ni pomembno za odločitev v tej zadevi.”
“46. Glede drugega vprašanja pa je tudi že pojasnjeno, da ni nobenega dvoma o tem, da mora biti sodniku zagotovljena neodvisnost pred vsakršnimi pritiski, zunanjimi ali notranjimi, in mora biti pred njimi zaščiten ne glede na to ali le ti prihajajo od zunaj ali pa do njih prihaja znotraj pravosodja22. Zato predhodno odločanje Sodišča EU tudi o tem vprašanju ni potrebno.”
“9 ZUP* npr. predvideva odstop od načela zaslišanja stranke v primeru skrajšanega ugotovitvenega postopka (144. člen) in tudi LEUTP dopušča omejitve pri uresničevanju pravic, ki jih ta listina priznava, vključno s pravico do izjave, priznane v njenem 41. členu, pri čemer prvi odstavek 52. člena listine zahteva, da je vsaka omejitev predpisana z zakonom in da spoštuje bistveno vsebino posamezne temeljne pravice.”
22Iz izpodbijane odločbe niti posredno ne izhaja, da Sodni svet ne priznava notranje sodnikove neodvisnosti.
