By: Dr Vinko Gorenak
Equality before the law is one of the fundamental principles of every rule-of-law state, but in our case, we are an exception. Why do I claim this?
In 2021, Klementina Prejac, a prosecutor from Celje, dismissed the criminal complaint filed by then Minister of the Interior Aleš Hojs against Alojz Breznik, who had written about Hojs that he was “a dog that needs to be liquidated.” A rather direct threat from a citizen to the Minister of the Interior. Naturally, Aleš Hojs filed a request for prosecution of Alojz Breznik for direct threat under Article 135 of the Criminal Code.
Prosecutor Klementina Prejac ruled that this did not constitute a criminal offense of threat, stating that a threat must be “of such intensity that it is objectively capable of causing fear for one’s life in another person; mere subjective fear or distress of the victim is not sufficient.” At this point, it is important to note that under the law at the time, prosecutorial decisions were not subject to review.
This position was difficult to accept, which is why, during the third Janša government, Article 169 of the State Prosecutor’s Act was amended to require that every prosecutorial decision be reviewed either by the head of the prosecution office or a panel of prosecutors, depending on the severity of the alleged offense.
Some time later, Urban Purger conducted a test of prosecutorial consistency on Twitter, now X, by posting the exact same statement as Alojz Breznik, but replacing Aleš Hojs’s name with Tanja Fajon’s.
And lo and behold, at Tanja Fajon’s request, the police visited him. He explained that he had no intention of harming Tanja Fajon and had merely conducted a test to see whether the prosecution would act the same way as it had in Hojs’s case. The police informed the prosecution, and prosecutor Jože Čeru was made aware of the situation. And again, lo and behold, he assessed that in Urban Purger’s case, there was a suspicion of a criminal offense under the same Article 135 of the Criminal Code, namely, a threat.
You may be wondering why I am writing about this and what it has to do with the coalition. It has everything to do with it. Upon taking office, the Golob government passed the “Act to Reduce Inequality and Harmful Political Interference and Ensure Respect for the Rule of Law.” Among other things, it amended Article 169 of the State Prosecutor’s Act so that prosecutorial decisions are once again not subject to any review, regardless of their nature.
This situation is absurd. Prosecutorial legislation, up until 2011, and even under the former Yugoslav system, contained provisions requiring that every prosecutorial decision be reviewed either by the head of the office for minor offenses or by a panel of three prosecutors for more serious offenses, which is entirely normal and logical. But in 2011, then-Minister Aleš Zalar passed a law that completely equated the status of judges and prosecutors, which was a catastrophic mistake.
The case of Aleš Hojs and Tanja Fajon, described above, is a textbook example of how a prosecutor can decide whether something constitutes a criminal offense or not, even when the actions are identical and both suspects are politicians.
Every decision by a first-instance judge can be reviewed by a higher court, the Supreme Court of Slovenia, the Constitutional Court, and the European Court of Human Rights. So, a judge’s decision can be reviewed by four judicial instances, which can overturn it, rule differently, or return it for retrial.
But under the legal change introduced by the coalition, a prosecutor’s decision is no longer subject to any review. Above them, there is only God and the blue sky.
Of course, the coalition knew exactly why they did this. They were clearly thinking of the majority of politically left-leaning prosecutors who would be handling cases detrimental to members of the coalition and would thereby absolve them of any wrongdoing.