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Wednesday, May 29, 2024

Judges are supervised, but prosecutors are controlled only by God and the blue sky

By: Dr Vinko Gorenak

A few days ago, we were able to read the news that Klementina Prejac, the Celje prosecutor in 2021, dismissed the criminal complaint of the then Interior Minister Aleš Hojs, against Alojz Breznik, who wrote about Aleš Hojs that he was “a dog that needs to be liquidated.” A quite direct threat from a citizen to the Minister of the Interior. It is logical that Aleš Hojs filed a request to prosecute Alojz Breznik, due to a direct threat under Article 135 of the Criminal Code 1.

Prosecutor Klementina Prejac decided that it is not a criminal act of threat, as “a threat must be of such intensity that it is objectively capable of causing a feeling of fear for the life of the other person… but the subjective fear or commotion of the victim is not sufficient”.

It is a good thing that Urban Purger (“urba” on the TW profile) tested the same criteria of prosecutors for all citizens, including politicians. On his TW profile, he published exactly the same text as Alojz Breznik, except that he replaced Aleš Hojs’ name with Tanja Fajon.

And lo and behold, at Tanja Fajon’s suggestion, he was visited by the police, to which he explained that he had no intention of taking Tanja Fajon’s life, only that he did a test to see if the prosecution would act in the same way as it did in the case of Aleš Hojs. The police also informed the prosecutor’s office in Ljubljana about this, and prosecutor Jože Čeru was therefore aware of it. But speak of the devil, he assessed that in the case of Urban Purger, it is a suspicion of committing a criminal act under the same Article 135 of the Criminal Code 1, i.e., a threat.

The conclusion is therefore quite simple, if you threaten right-wing politicians (Aleš Hojs) it is not a crime, but if you threaten left-wing politicians (Tanja Fajon) it is a crime.

You must be wondering how this is even possible. Of course, this is possible, and the direct culprit for such a situation is the former Minister of Justice Aleš Zalar. At his suggestion, in 2011 the National Assembly equalised the position of prosecutors with that of judges, of course in terms of independence in decision-making. A catastrophic mistake, I argued back then. Why? Judges are part of the judicial branch of government, but prosecutors are not, they are part of the executive branch of government, as the Constitutional Court of the Republic of Slovenia decided a long time ago. But that is not all. If the judge of the first instance decides that someone is guilty, this decision is subject to the judgment of the higher judges, who can confirm or reject the decision of the judge of the first instance. If the High Court judges also decide that someone is guilty, their decision can be overturned by the Chief Justices. But if they still decide that someone is guilty, their decision can be overturned by constitutional judges (this was the case with Patria). Finally, if the constitutional judges confirm a conviction, it can be overturned by the European Court of Human Rights. The wrong decision of the judges of the first instance is therefore subject to as many as five instances of judgment, which can annul the decision of the judge of the first instance and correct the injustice. All well and good, but what about the prosecutors’ decision-making?

Only God and the blue sky are above their decisions, if they do not initiate legal proceedings. In 2011, as already mentioned, the former Minister of Justice proposed changes to the prosecution legislation, which practically equalised the position of judges and prosecutors in decision-making. But beware, above the lowest prosecutor, according to the law of the time, there was no one who could change his decision. And this is a real disaster. Therefore, we have a case where the threat to Aleš Hojs, according to the decision of the prosecutor Klementina Prejac, is not a criminal act, but the literally identical threat to Tanja Fajon is, according to the assessment of the prosecutor Jože Čeru, a criminal act. Where is equality before the law here? It is not there.

Let’s also add that during the last Janša’s government, we changed the Prosecutor’s Act in such a way that we tried to correct this anomaly at least partially. We thus gave some control tools to the state prosecutor general and the prosecutor’s organisation. If there is no reaction from Drago Šketa, the state prosecutor general or the prosecutor’s organisation in the mentioned case, then something is seriously rotten in the prosecutor’s organisation.

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