By: Gal Kovač (Nova24tv.si)
After a long legal and political saga, the leftists have announced the dismissal of members of the RTV Programme Council. On the 1st of June 2023, members of the Commission for Public Office and Elections of the National Assembly of the Republic of Slovenia will vote on a decision that will abolish the legally granted mandates of the members of the national media outlet Radio-Television Slovenia’s Programme Council. The explanation of the decision is legally untenable, according to the wider expert public. If the illegal decision would actually be implemented, the political authorities would march to the courts, and sooner or later, the European Court of Human Rights would have to rule on the matter. But the judiciary is already in a quandary at the moment because of what is happening in the Constitutional Court. We have obtained the opinion of a renowned legal expert on the topic, who wished to remain anonymous. Despite that, his judgment is still very significant. He argued that Slovenia is in a constitutional crisis.
“There are two issues to be highlighted in the case. One is the procedural issue of the suspension, for which there is no reason to change it, and then there is the substantive issue of how this law was procedurally passed in the National Assembly. It is clear a priori that you cannot adopt a law of this kind under the urgent procedure that is supposed to only be applied in times of war and states of emergency. This was quite a big mistake on their part. Because the law was passed very quickly, the Constitutional Court suspended its implementation. Because if the authorities had successfully removed the programme councillors from the Programme Council, that would have caused irreversible consequences,” he explained.
The legal expert then spoke to our media about the procedural issue before the Constitutional Court judges. The question is whether they can now overturn or nullify their original decision to suspend the constitutionally controversial law. “Case law has rejected this possibility in more than 28 years of practice,” former Constitutional Court Judge Zobec explained in yesterday’s episode of the show Arena, adding, “Not only does case law not confirm this, but moreover, the suspension, in this case, is constitutionally necessary, because without it the petitioners would have no judicial protection and their mandates would be irreversibly terminated.” This opinion was subsequently referred to by Dr Peter Gregorčič, the initiator of the constitutional review of the law in question, but more on this later.
Legal circumstances have not changed
Our source also explained that the temporary suspensions of laws have the same purpose everywhere, i.e., to “freeze” the legal situation while the case is being decided on. This thus means that it is completely illogical that the Constitutional Court would now “unfreeze” the case. Why? Because the factual circumstances that led to the Constitutional Court’s original decision have not changed. “This is simply not logical. If at a certain point in time, you have an opinion, as the Constitutional Court had it, that the law should be suspended because otherwise, irreversible consequences would occur, then you cannot just unfreeze the law,” the lawyer said, and then added, “because the facts haven’t changed in the meantime!” He then offered a further, clear example to illustrate this.
“It is a procedural issue. If, for example, in a paternity case with a mother who is incapable of caring for the child, the court decides that the child should be awarded to the father for the duration of the child allocation assessment, then the court cannot change its mind the next day and reverse its decision. That would mean it found that there is no danger to the child, which would be contrary to the facts established. This is simply illogical,” he explained.
A constitutional crisis
The procedural complication continues to cause a stir in the public. The developments at the Constitutional Court have been leaked to the public. Under normal circumstances, this should not have happened. It was clear that something very strange was going on at the Constitutional Court when Judge Svetlič was no longer the judge rapporteur in the case but was replaced by Judge Accetto. The latter is considered to be more in favour of the “left” authorities. The public already saw the e-mails which proved that he took part in the writing of the SMC party’s programme when it was still led by its former President Miro Cerar, of whom, according to Accetto’s own words, he was a “silent supporter.” When we asked the Constitutional Court of the Republic of Slovenia why Svetlič was no longer the rapporteur in the case, we received the following reply: “Dear Sir or Madam, in accordance with their work schedule (Section V), the judges have agreed to assign the case to Judge Accetto. The work schedule of the Constitutional Court of the Republic of Slovenia for the spring session 2023 – Constitutional Court of the Republic of Slovenia. Replacements of rapporteurs are not very frequent, but they are also not uncommon. However, it is a rule at the Constitutional Court that each judge can always submit a variant proposal for a decision, even when he or she is not the rapporteur. It is impossible for us to say any more than that.”
It was on this basis that the sitting of the Constitutional Court supposedly took place, at which three judges – Jaklič, Šorli and Svetlič, were said to have left the Chamber, saying, you will not accept this amendment, this decision to lift the suspension, with our votes. “This is extremely unusual. This is, in fact, a constitutional crisis. A constitutional crisis occurs when a part of the Constitutional Court is acting procedurally incompatible with the Constitutional Court Act and the Constitution to such an extent that these judges, who refused to agree to this manoeuvre, had no choice but to walk out of the Chamber,” our interlocutor explained.
What will happen next?
Predicting the future is a thankless task. At this point, it is difficult to predict how the Constitutional Court will rule. Our interlocutor argued that it would be logical for the Constitutional Court, if it has accepted the suspension of the law in question, to assess it very critically, especially from the point of view of its adoption.
If the members of the Commission for Public Office and Elections decide to dismiss the nine programme councillors, there will be irreversible consequences, as the latter will leave the Programme Council for good. “The case will then almost certainly be referred to the European Court of Human Rights, which would almost certainly find that there is unauthorised and unacceptable pressure being exerted on RTV. By the time the case reaches Strasbourg, two years or more will have passed,” concluded our interlocutor.
Usurpation followed by a constitutional impeachment
The story of the attempted usurpation of the public media is likely to have many twists and turns before the pilgrimage to the European Court of Human Rights. Just recently, the Constitutional Court received an application from the petitioner for a constitutional review of the amendment to the Radio-Television Slovenia Act, Dr Peter Gregorčič, who claims that it would be inadmissible and legally impossible to annul the decision without an adversarial procedure, and the Constitutional Court is proposing a preliminary ruling procedure.
As he stated in his submission, by lifting the suspension on the amendment, the Constitutional Court would also be violating Article 22 of the Constitution, which guarantees legal protection to all citizens and, thus, also to the initiators of the constitutional review.
Golob has announced an illegal way of depoliticising RTV
As of the 1st of June, something else will also become clear. Former Prime Minister and Slovenian Democratic Party (Slovenska demokratska stranka – SDS) President Janez Janša said that if the decisions on the dismissal of councillors are actually adopted, the conditions for a constitutional impeachment of the Prime Minister will be met. “In fact, Prime Minister Robert Golob publicly announced in advance that RTV Slovenia would be dealt with in an illegal, i.e., unlawful, manner. After today’s confirmation of these words by the convening of the Commission for Public Office and Elections, this is enough for a constitutional impeachment if the proposed decisions are actually adopted,” Janša wrote.