By: Dr Vinko Gorenak
The judiciary is an independent branch of power, equal to the National Assembly (legislative branch) and the government (executive branch). This is clearly stated in our constitution. However, back in the time of independence, the leaders of the then-totalitarian and undemocratic political authority were already contemplating how, despite Slovenia’s independence and democratisation, they could protect their privileges in the new state and political system. They arrived at several conclusions, but one of the most important was that they needed to keep the judiciary on “their” side. This is exactly what happened, and we still feel the consequences today. It would be hard to accuse Golob’s coalition of subjugating the judiciary, as it has been consistently subordinated (since 1945) to the former state’s totalitarian system, and since independence, to the left-leaning political pole, which includes all the political parties that now form Golob’s coalition. Why do I make this claim?
Let me first remind you who were the individuals that became judges back in 1945. There were very few actual legal professionals serving as judges up until that point; instead, archives reveal records of new appointees who were craftsmen by trade, such as tailors, bakers, and others in various professions. These people, of course, had no connection to the law; what mattered was that they ruled as the undemocratic and authoritarian authorities of the time wanted them to. Although this situation did not persist until 1990, it is true that left-leaning political ideology dominated the judiciary right up to 1990, up until Slovenia’s independence. It is clear that the authorities at the time ensured the left-leaning character of the judiciary, starting in law school. I will just remind you of the textbooks by Ljubo Bavcon, who was regarded as a key figure in law at the Faculty of Law in Ljubljana, not only during the one-party totalitarian system but also well into the time of independent Slovenia. In his textbooks for future judges, this gentleman clearly stated that criminal law served socialism and must uphold the values of socialism – that is, the values of a totalitarian one-party system. Future judges were studying these textbooks even well into independent Slovenia.
It is no wonder, then, that those who claim that, after 1990, the so-called class enemy (all those who disagreed with the one-party, totalitarian system) was replaced by the political right (political parties on the right-wing) in the judiciary are fairly close to the truth. There are many practical pieces of evidence for this and more. For the sake of fairness, I must note that I cannot and should not lump all judges together, but a portion of judges can indeed be described this way.
Other former socialist countries, which also had undemocratic and totalitarian regimes, were far more cautious in the area of judiciary reform than Slovenia. In Germany, after the reunification of East and West Germany, only those judges from the former East Germany who undertook additional training in human rights could remain, and most were dismissed. Similar practices were followed elsewhere.
This was not the case in Slovenia. After independence, we adopted judicial legislation, including Article 8 of the Judicial Service Act, which states that only those judges from the pre-independence period who did not violate human rights in their rulings could be appointed to a permanent judicial mandate. However, our judiciary never respected this article. There was only one exception; otherwise, this article remained a dead letter. Consequently, socialist judicial practices continue to this day.
Former Constitutional Court judge and current Supreme Court judge Jan Zobec stated something along these lines in a U.S. article years ago: “The Slovenian judiciary is well protected from political influence. The problem is that politics is present within it. This has always been the case, as it has never left.” So, what was he saying? He was saying that our judiciary has been under the influence of the left-wing political sphere since 1945, which also includes the members of Golob’s coalition.
There’s ample practical evidence for this. Let me remind you of the Patria court case, which dragged on for over ten years and resulted in imprisonment for opposition leader Janez Janša. However, the Constitutional Court ultimately ruled that he was convicted of something that is not a criminal offense – the gravest error a judge can make. And what happened? Nothing! But something should have happened. Our Criminal Code does contain Article 288 (unlawful, biased, and unjust trial). According to this article, all judges involved in this case should have been tried, including the then-President of the Supreme Court of Slovenia, Branko Masleša. But this did not happen.
Thus, Golob’s coalition did not subjugate the judiciary, as it has always been theirs.