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Friday, May 24, 2024

International Lawyer Pogačnik: The State Has Formal Mechanisms to Investigate Whether Prosecutor General Šketa Exceeded His Authority in Luxembourg

By: Domen Mezeg / Nova24tv

“The state has formal mechanisms at its disposal, with which it can investigate whether the Prosecutor General, Drago Šketa, acted in accordance with his powers or exceeded his authority. In certain parts (we should not judge people before we learn the truth), the Prosecutor General is certainly allowed to inform the European Union about specific things; namely, he can talk about the fact that Slovenia took on the obligation of deeper cooperation (we are talking about the European Delegated Prosecutors). However, even related to that, it should be pointed out that Slovenia should not have done that and can withdraw at any time. And regarding the part where he mentioned he is somewhat “sad” due to the relationship between his own status or the status of the prosecutor’s office and the state – here is where the question arises of whether he may have exceeded his authority because the judicial system and the policy and organisation of law enforcement are within the internal competence of the states themselves,” said Dr Miha Pogačnik, an expert in international law, regarding the conduct of the Slovenian Prosecutor General, Šketa, at his recent visit to Luxembourg.

“Regarding Russia, the basic question was, to what did the General State Prosecutor Drago Šketa agree there, and related to that, what kind of a legal act happened there,” Dr Miha Pogačnik, an expert in international law, told our media outlet. After reviewing the agreement between the general prosecutors of both states, it is completely clear that this is an implementing international agreement, which, in accordance with the Slovenian Constitution and the Foreign Affairs Act, must be ratified by the government if it is to enter into force. In cases of international agreements, we have certain provisions on the parties; we have provisions on articulation, paragraphs, designation of competent persons for the implementation, clauses on validity and invalidity, clauses on the liability of state authorities, provisions on entry into force, and provisions on termination of the agreement, and so on. And all of these are elements that make it clear that this is a contractual act.

“None of that is included in political documents. This is certainly an international treaty. And in addition, Article 69 of the Foreign Affairs Act, as well as the Vienna Convention on the Law of Treaties, which is summarised by the aforementioned act, states that an agreement (according to the 1st paragraph of the Vienna Convention) is every international agreement between two states, in writing, governed by international law, whether contained in a single document, two or more documents, and regardless of what its name may be.” This can be a pact, agreement, convention, and so on. In this case, this is not merely a conversation between two legal or natural persons under private law but two representatives of states. And the moment we have these two representatives of the states, and the moment these two representatives agree on what the state bodies (not private bodies) will talk about, they are taking over interstate relations.

And that is what is most important. In Slovenia, such mistakes happen too often because people, as well as a large part of the state administration, have thought for many years now (practically ever since we gained our independence) that the Foreign Affairs Act, which regulates national treaties, applies only to diplomacy and diplomats; however, this is not the case. If two ministers of the economy, two secretaries of state, or two junior officials of the ministries of the economy agree on something, it is considered an international treaty (if it concerns states). The same applies to the Ministry of Health and all other ministries, as these are all state bodies. The agreement on the division of frequencies between the two countries in the border area is also an international treaty because it concerns human rights. And such international treaties, in principle, if they are implemented (and the one in question is being implemented, as it is a programme of what will happen), have to be ratified in accordance with Articles 8 and 153 of the Constitution and Article 75 of the Foreign Affairs Act, by the government.

Whoever the person from the Ministry of Foreign Affairs is that assessed that this is not an international agreement should be dismissed
“And until the government ratifies the agreement, it should not apply. The Prosecutor General signed what he signed, but this is not binding for anyone in Slovenia. The Prosecutor General referred to the fact that the Ministry of Foreign Affairs gave the assessment that this was not an international treaty, but whoever gave that assessment either acted in bad faith or had no idea of the international law and should be dismissed immediately because they clearly are not competent enough for it.” There are very clear criteria for these assessments, but we do not know what actually happened. However, the main thing is that this is an international treaty, and that this agreement will never enter into force in Slovenia until it is ratified by the government, in accordance with the Constitution and the Foreign Affairs Act. And in the case of interstate agreements, there are only two options: whether it is a political declaration or a legal agreement (act).

And political declarations are usually a matter of larger meetings, so in this particular case, this is a legal act. The criticism aimed at Šketa in light of the tensions between the West and Russia, however, is a political, not a legal issue. In general, there is nothing wrong with prosecutors talking to each other and states talking to each other (ministers, junior officials, executive officials). However, this is a political issue. “However, it seems to me that at the moment, it is relatively inappropriate for Slovenia to cooperate with Russia in the field of justice (of any kind) because Russia is not someone to be considered a role model, in terms of the judiciary and the prosecutor’s office. Because of this, Russia has been the topic of discussion several times before. And it has been said in the media many times before that the interlocutor of our Prosecutor General is not the “brightest star” in the field of the rule of law.” And whether the matter is politically appropriate or not is for the politics to decide.  

The facts must be established regarding the allegedly disputed conduct of Šketa in Luxembourg
In the case of Luxembourg and the Chief Prosecutor of the European Union, Laura Kövesi, the matter is as follows: the Supreme Public Prosecutor’s Office’s explanations regarding Šketa’s visit to the European Public Prosecutor’s Office (EPPO) in Luxembourg on the 27th of January 2022, seem a bit “whiney” and related to the lack of money, as Šketa apparently said that the government is making certain moves that are restrictive for the prosecution, and also mentioned the backlogs on the appointment of the European Delegated Prosecutors. Regarding this question, Pogačnik made two conclusions: first, this is a question of facts – of what actually happened. On the one hand, there is the position of the media and Prime Minister Janez Janša, who claim one thing, and on the other hand, we have the explanation of the Prosecutor General, who claims something else entirely (that he did not want for the European funds to be frozen or that he did not do what the media are accusing him of doing). This is a clear case of searching for the facts. Matters can either be clarified at the National Assembly’s commission of inquiry, or if the Minister of Justice orders an administrative control and thus finds out what happened, and perhaps there is even a third option.

The state has formal mechanisms at its disposal, with which it can investigate whether the Prosecutor General, Drago Šketa, acted in accordance with his powers or exceeded his authority. “In certain parts (we should not judge people before we learn the truth), the Prosecutor General is certainly allowed to inform the European Union about specific things; namely, he can talk about the fact that Slovenia took on the obligation of deeper cooperation (we are talking about the European Delegated Prosecutors). However, even related to that, it should be pointed out that Slovenia should not have done that and can withdraw at any time. And regarding the part where he mentioned he is somewhat “sad” due to the relationship between his own status or the status of the prosecutor’s office and the state – here is where the question arises of whether he may have exceeded his authority because the judicial system and the policy and organisation of law enforcement are within the internal competence of the states themselves.” And the issue of the European funds has been somewhat presented to the public but is still unclear.

There is a clear difference between Lenarčič and Šketa: the former is responsible to the EU, and the latter to the Republic of Slovenia
And if things really happened like reported, then this is outrageous because Šketa is a state official, unlike Janez Lenarčič, who is a European official. And if the latter makes a move that is unfavourable for Slovenia, then that might be considered morally reprehensible, but he is not responsible to Slovenia in any way because the EU commissioners are independent of national institutions, in accordance with Slovenian and international law. The EU would not be able to do its job if, for example, the Slovenian commissioner received his instructions from Ljubljana, and the German one received his or her instructions from Berlin… In practice, however, each commissioner is supposed to promote his country and is also a kind of “informal image” of it, and it is assumed that he or she will work for the benefit of the country that nominated him for the position.

In Lenarčič’s case, the matter would only be morally reprehensible, but in Šketa’s case (provided that the facts are true), this is no longer only morally reprehensible, since Šketa is a civil servant of the state, unlike Lenarčič. He is paid by the state to work for the benefit of the state and to protect the national interests of the state, including foreign policy, as well as economic and all other interests. And if he acts against the best interest of the state, against the Republic of Slovenia, he acts against his employer. In Lenarčič’s case, his employer is the EU. However, according to the State Prosecution Service Act, Šketa is a civil servant or a state official. However, the matter needs to be thoroughly investigated. “And I think the spectrum of actions is different depending on what powers the public prosecutor’s office has over the EU and in what part Šketa may have exceeded his authority and began burdening the EU with our domestic public prosecution’s affairs.”

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