By: Sara Bertoncelj / Nova24tv
“The higher you go in the structure of the judiciary, the higher the percentage of former communists,” said Zdeněk Kühn, a supreme judge and professor at the Faculty of Law in Prague. Delays, absurd and surprising decisions, and a high degree of formalism are all characteristics of the judiciary in post-communist countries. There seems to be a deep continuity in the methods of legal reasoning – as well as in the methods of selecting suitable candidates for high positions in the judiciary. “I did not have an excessive desire to become the president of the Supreme Court,” said Masleša, who will turn 70 next year and retire, but did not say whose wish it was, if not his. In an interview with Dnevnik, he also mentioned his dear professor Ljubo Bavcon, with whom they may share the same fate, that they will never have peace – neither in retirement nor six feet under.
Branko Masleša’s candidacy for Supreme Judge and President of the Supreme Court in 2010 was supported by MPs from the then coalition parties, including Miran Potrč (SD), Borut Sajovic (LDS), Matjaž Zanoškar (DeSUS) and Franco Juri (Zares). The candidate was proposed by the then Minister of Justice, Aleš Zalar – but the procedure seemed controversial to judges and some MPs, because it was allegedly contrary to the division of power. They believed that the president should be appointed by the judges themselves, not by politics. The opposition at the time was even more sceptical about Masleša, the SDS parliamentary group wrote to the then President Borut Pahor that the proposal to appoint Masleša had been met with various, mostly negative reactions from the public, and that new questions arose every day, deepening doubts about the suitability of the proposed candidate. “By opposing Masleša’s candidacy for president of the Supreme Court, the opposition wants to prevent the rule of law,” said Juri.
As a candidate for president of the Supreme Court, Masleša was a very controversial political and legal figure, a local communist functionary, and an ardent supporter of the Yugoslav People’s Army. His appointment was then proposed by the Minister and supported by both the Supreme Court and the Judicial Council – despite being the last judge in the Socialist Republic of Slovenia (before Slovenian independence) to sentence someone to death. And despite accusations against him, confirmed by a Constitutional Court judge and two supreme judges, that the candidate in a previous life during the undemocratic regime took part in checking the massacres of apostates on the Yugoslav-Italian border. “In addition, all former Slovenian presidents of the Supreme Court had academic titles or were recognised judicial experts. On the other hand, the set of scientific and professional publications of the appointed president shows his weakness in the professional field and lack of reasonable reputation in judicial circles,” wrote Supreme Judge Jan Zobec in his article “The failed transition”.
At that time, the Academic Society Pravnik called on the National Assembly and the government to reconsider the appropriateness of his appointment due to several concerns that arose in public regarding Masleša’s candidacy for President of the Supreme Court. Namely, they were convinced that the allegations about Masleša’s alleged statements in the early 1980s and at the time of Slovenia’s independence, presented to the public by a judge of the Constitutional Court and later publicly confirmed by other prominent representatives of the judiciary, were serious and highly questionable into the personal integrity of the candidate. “His alleged statements, which are supposed to express opposition to Slovenian independence and enthusiasm for the shooting of a refugee, raise fundamental questions about the patriotism and humanity of Chief Justice Branko Masleša,” they wrote among other things.
Branko Masleša served as party secretary in the 1980s
They also wrote that several unresolved circumstances regarding the operation of so-called verification commissions and his role in their work, as well as the fact that Supreme Court Judge Branko Masleša served as party secretary at the Koper High Court in the 1980s, also cast doubt on his suitability. “The Academic Society Pravnik warns that the appointment of Chief Justice Branko Masleša, even before any doubts about his personal integrity are removed, would lead to further undermining of citizens’ confidence in the independence and impartiality of the Slovenian judiciary and the rule of law in general,” they said.
“Your son is neither guilty nor ruthless, we are holding him for the sake of others,” Masleša said in 1982, when he was an investigating judge in Koper and did nothing to help the boy he knew was being tortured. A letter from Matej Bor (Vladimir Pavšič), which testified to Masleša’s events and actions at the time, was exhibited in the National and University Library years ago – but Masleša said that it was a long time ago and that he did not remember all the details. Some time ago, Požareport wrote that in October 1982 Matej Bor wrote a letter to the President of the Republic Presidency France Popit asking him to protect his son Stanko Kajdiž – after a house search, he was taken to Koper for questioning – to the investigating judge Masleša. Since the son Miro did not return, the parents had to work hard to be able to visit him at all. It turned out that the boy was beaten, tortured, his chest tightened and hit his head hit to the ground. Masleša found all this out, but never acted, nor did he record it in the minutes. In 2013, Masleša responded to the accusations that statements in Bor’s letter are not true.
“Since I have a bad conscience from the very beginning, as a citizen of the country with the most democratic constitution in the world, and especially as a public worker, writer, and member of the Council of the Republic, I address you as President of the Presidency in this case, to take the protection of the victim and do your best to investigate the case, which is a serious case of violation of our judicial order and legality, and the perpetrators are punishing severely,” Bor wrote in a letter to Popit. “During the visits to Koper and the statements of Judge Masleša and the lawyer, I was convinced that those responsible in law enforcement and justice can very easily deprive a small person of freedom without real justifications, which are only later collected and constructed and extend the situation from month to month, like they do with my son,” Kajdiž’s father wrote in a letter to Bor.
Masleša also sat in the Senate, which imposed the last death sentence in Slovenia – on a convict who was even found to be partially insane and later also completely insane, so he was sent to psychiatric treatment, and the death penalty was not executed. In addition, in 2010, Karel Peter Schwarz wrote in the Frankfuter Allegmeine Zeitung: “In at least one case, he made sure that the fatal shooting of an Eastern European refugee was not prosecuted.” As already mentioned, Masleša’s former judicial colleagues were horrified by his enthusiasm when the illegal immigrant was shot in the forehead. His cruel behaviour was confirmed by several judges: “In the summer of 1982 or 1983, Masleša came from visiting a fugitive across the Yugoslav-Italian border and told how a soldier shot someone with a very accurate shot to the forehead,” the then chief justice Rudi Strauss said in 2010.
“In 1982, a non-commissioned officer of the Yugoslav People’s Army shot a police officer in Postojna. The public prosecutor and I conducted a tour and questioned the non-commissioned officer, who was later sentenced to the maximum term of imprisonment. The incident at the border that I was accused of happened in 1984, on Saturday, July 7th, when I was the investigating judge on duty. In addition to me, the Koper prosecutor, typist, forensic technician, and forensic scientist were also at the scene. No military commissions. The man was shot and was lying on the Italian side of the border, some 15, 20 meters from the border. So, the matter was taken forward by the Italian authorities, I just made the record. After that, we went on to another tour of the suspected suspect and did not return to court at all. When my colleague, Chief Justice Rudi Štravs, “confirmed” that I came from watching the shooting at the border all excited about how the soldier hit the man in the middle of the forehead, which is a lie, he said he heard only the initial part of the conversation and then he went to the hearing,” Masleša explained in Dnevnik his side of the story about his “enthusiasm” for the shot to the forehead – which he claims is a lie. He added that he had also been accused of watching a crime related to the shooting of a fugitive in Rožna dolina near Nova Gorica in 1988, when he had been a senior judge for almost four years. He asserted that he had never visited the Gorica court.
In the end, the question always arises as to how the public should trust the judiciary and believe that it will impartially eliminate injustices. What is the message of the Plenum of the Supreme Court supporting such a candidate? The personality of the President of the Supreme Court also has an important symbolic meaning and represents the personification of the professional and personal qualities of a judge – with his professional and personal integrity he should be an example to all other judges in the country and the embodiment of judicial ethics. “When the plenum of the Supreme Court supports the candidate for the presidency of the Supreme Court, it sends a message to the judiciary and the public that this is a judge who should be taken as an example,” Zobec explained in the article. But in Slovenia, as in other communist countries, it was self-evident that the law and the entire legal system, including its institutions, existed to serve and protect the ruling elite and their ideology. The transition to a liberal democracy based on the rule of law also took place with old cadres who were born, raised, and educated in a totalitarian regime. “From the very beginning, I could only agree with the old truth that a subsystem, such as the judiciary, obviously cannot be separated from the system to which it belongs and of which it is a part. Therefore, if the system suffers from a lack of democracy and the rule of law, as is certainly the case in the Slovenian system, the current situation is even deteriorating, and the judiciary as its subsystem could not be much different,” Zobec pointed out in his article.