Yesterday, Prime Minister Janez Janša attended a meeting of the highest representatives of the three branches of government at the Presidential Palace in Ljubljana on the topic “The principle of separation of powers – (self) limitation, mutual control and mutual cooperation”.
Please find his full address below.
Thank you very much, Mr President, thank you for organising this meeting. It was not entirely clear to me what it is going to be about, except for finding some formal answers to some of the dilemmas that have arisen, but now I see from the list of invitees that it is primarily a question of the judicial branch of power that prevails here, at the meeting. There is less representatives from the executive, and even less from the legislative branch.
I understand what we are talking about now.
Unlike everyone else present here, I can shed a light on this problem from a different angle, thanks to some people that are now even sitting at this table. I will start 32 years ago. At that time, after a week of hunger strike, the law on criminal procedure and criminal codes of the SFRY and SRS were brought to my cell, to the solitary confinement of the military court on Metelkova. I read the introduction to one of these laws, I think to the Criminal Code of the SRS, i.e. the Socialist Republic of Slovenia, that was not much different from the introduction to the Federal Criminal Code. It said: “The judicial system is a tool of the avant-garde, that is, the Communist Party , to carry out its program, and criminal law is a tool for destroying the class enemy.” The text was not as concise as it was not written in four sentences, but rather on a couple of pages, but that was the point.
32 years ago, we had some kind of judicial system and criminal law that was formally defined as a tool for destroying the class enemy. Mr. Florjančič refers to this by saying that some judicial errors had occurred. I think the essence of the problem we are discussing today lies precisely in this diametrically different definitions of a judicial error.
Forewords to both criminal codes were written by a distinguished professor of criminal law, who is still a professor emeritus at the Faculty of Law in Ljubljana and who exerted influence over establishing many things. Interestingly, six months after I read his words, the then Socialist Union appointed him President of the Council for the Protection of Human Rights. The man who wrote in the introduction to the Criminal Code that criminal law is a tool for destroying the class enemy. This was not just written in the introduction, it was happening in practice. Hundreds of people were sentenced to death and executed. Due to this reciepe, they were imprisoned, their lives, families, careers were destroyed and they were banished. Mr. Florjančič, these were not judicial errors – this was a system of destroying people.
Thanks to everything that happened outside the cell on Metelkova, Slovenia came to multi-party elections, it became independent and it adopted a new constitution, which states everything that some of you quoted earlier. It must be acknowledged that in those first years the Slovene Constitutional Court did a lot to dismantle, both theoretically and de jure, this view of the role of criminal law and the judiciary in the one-party regime, and it redressed many injustices done to individual groups and concrete individuals, who survived.
Even the Supreme Court in those early years, the 1990s, did a lot. It declared the former secret political police a criminal organisation and substantiated it very well, annulled a number of political processes, not all, some lasted a long time, and it appeared that Slovenia was becoming a normal country, with a normal judiciary, complying with the separation of powers and the Copenhagen criteria for EU accession and that things will become normal.
After that, mass killing fields began to be discovered. So far, over 700 of them have been discovered in Slovenia with direct evidence that tens of thousands of people were killed not during the war, but after the war. At the moment, I think that over 670 mass killing fields have been recorded on the official list of the commission in charge, yet the Slovenian judiciary and State Attorney’s Office have not prosecuted any of the people responsible for crimes, which never fall under statute of limitation, not under international law nor Slovenian law.
At the same time, the former Social Accounting Service filed over 700 complaints of illegal privatization, at least half of the Slovenian state economy was stolen, the Slovenian State Attorney’s Office and judiciary did not lock anyone up, and even if they did, they were pardoned by President.
There, somewhere in the middle of this so-called transition time, things turned in the opposite direction.
In 1994, a new law on the judicial service was adopted, which came into force at the suggestion of dr. Jože Pučnik, the so-called Pučnik’s amendment, which states that those who had violated human rights in the previous regime while preforming their judicial functions cannot be appointed to a permanent term. I think that the Judicial Council complied with this law in only one case, and for all the other concluded that it did not have information that the candidates proposed for permanent terms had violated this article of the law, even though the indictments that proved the contrary were publicly available. Even more, books were written about it, documentaries were made, but the Judicial Council was somehow not aware of these violations.
Confidence in the judiciary has decreased dramatically. The key thing in assessing trust are in the case of elected politicians elections, but in the judiciary this is measured by other standards. We have seen a lot of research, including European, according to which trust in the judiciary authorities in Slovenia is one of the lowest in Europe, and these resrach were carried out after we joined the European Union.
When we were negotiating joining the European Union, we asked for help and the German Supreme Judge Dukoff was assigned to Slovenia and made some 20-25 recommendations on what Slovenia should do to ensure the Slovenian judiciary system reaches the level of the European average. Later, Minister of Justice, Mr. Zalar, described these recommendations as an unnecessary preaching from a European pedestal that does not understand the situation in Slovenia.
If you read those recommendations today, you realise that they are exactly what Slovenia is missing today and which is probably why we are sitting here today. But we did not follow the recommendations. After we joined the European Union the fears of someone keeping an eye on our affairs subsided, and instead of drastic improvment of things, things got drastically worse.
It is true that, as Mr Florjančič said, like other branches of government, the judiciary is burdened with bureaucracy, contradictory regulations , and the judiciary is not to blame for them. They were adopted by the legislative branch on the proposal of the executive branch. However, so far I have been elected to all Parliament structure, except when my mandate was taken unconstitutionally. I do not remember many protests or complanits by the judiciary or the State Attorney’s Office when additional bureaucratic burdens were accepted. At the time, we did not hear any words about attacks on the judiciary and the like, thus there is some kind of complicity. Bu the judiciary is not the primary culprit to be blamed. This bureaucratic clutter is a general problem in Slovenia. We have the most regulations per capita in the world and judiciary is not the only sector burdened by them.
At a time when Slovenia was establishing itself as an independent and formally democratic country, we all believed that given its democratic nature, people would have the opportunity to follow judicial trials, but then all of a sudden after joining the European Union, it became forbidden to even take pictures of a judge at a hearing. On the same day we watched how a high-ranking official was convicted in Zagreb with the judge publicly reading the verdict, but in our country this was forbidden or prevented by court orders. Then something changed, but it is only partially implemented.
The latest progress in quotation marks is the inaccessibility of final verdicts, which is limited. That is to say, we are going in the exact opposite direction from what needs to be done for the judiciary to enjoy public confidence. This trust cannot be created by talking about excessive criticism about and attacks on the judiciary. If the branches of government are separate from each other, then it is probably not forbidden to express critiques, otherwise I do not know how we can talk about democracy at all. For a while, we even heard that everything that the judiciary does must be respected, not taken into account, but respected, which placed this branch of power somewhere above the Pope, on the pedestal of complete infallibility and inviolability.
Even today, the esteemed President of the Supreme Court used this word, saying that the judiciary is being attacked.
I would like to point out that when in the former state, the Yugoslav People’s Army began to respond to any critiques by saying that it was attacked, that this was unconstitutional conduct and hate speech, it took only three more years for this institution to disintegrate, but before it did we had all experienced great tragedies.
Reputation needs to be earned. In Slovenia, politics does not have a high reputation, but this is a minor problem, because elections are held on regular dates and people have the opportunity to correct mistakes next time. In other words, the politics of a party, Parliament, the government, the National Council can never relax. Judges, however, have a permanent mandate. The fact that a permanent mandate was granted by Parliament in many cases does not mean anything, because the proposals were made by the Judicial Council in violation of the law. This can be proven and has been proven. So here, as a country, we face a big problem.
I have to say that it is very difficult from a human point of view to listen to how some are affected because they are critiqued, but on the other hand because of your judicial errors, Mr. Florjančič, people die, have families, careers, and lives destroyed and not in the SFRY, but in an independent democratic Republic of Slovenia, where all we talk about are human rights.
The last time I was in prison, where you sent me with a verdict of the Supreme Court, I met a man who was sentenced to 3 and a half years for a crime for which the law dictates a sentence of up to 3 years. However, this verdict passed the District Court, the High Court and the Supreme Court. The man had not had money to appeal to the European Court, where the verdict would have fallen. I can list many more such so-called judicial errors.
You have a case that is still pending and should not be commented on, but I will because it fell under the statute of limitation a few days ago. From two parallel lawsuits, it was clear to every layman who was very likely the killer of Mr. Jamnik, the director of the Institute of Chemistry, but the judge who pointed this out is in disciplinary proceedings and I do not know what else is going on with him. If this is a high standard of the Slovenian judiciary, God have mercy on us. No report of this kind or any other from the European Commission or anyone can cover this up, because it is obvious.
I hear comments that Parliament rejected candidates in a couple of cases. In a couple of cases, the Judicial Council proposed a candidate for a judge of the Supreme Court who has not worked in a courtroom for a single day. You would send someone to run a high-speed train who has not run a train for an hour ever before. And then it is a terrible scandal because the members of parliament refuse to do so and you are even supposed to propose such person again.
There is a saying that had probably been uttered by someone else before, but it is attributed to Thomas Jefferson, which reads, “When injustice becomes law, resistance becomes duty.” This quote is abused every Friday on the streets of Ljubljana. But there are protesting those who defend their privileges.
If you yourself in the judiciary are not able to have some serious reflection on the situation, reformation and self-correction, because politics is probably not capable of that, then those whose lives are being ruined will protest. These will be different protests. We saw them recently in one of our EU partner countries. Slovenian media write a lot about Hungary, Poland, about the judiciary there, but very little about Slovakia.
At the moment, the Slovak Parliament is drafting a special law that will alter a little more than 20 regulations in the field of judiciary and it will do what must be done in Slovenia, and the judiciary must be the one to take the initiative.
There have been mass demonstrations in Slovakia, arrests of judges, I think there are over 30 in prison at the moment, and I think there will be twice as many in the coming weeks because the matter has gone too far. And this is a country that is a member of the European Union. I can give details because we looked at the law, but I think that in Slovenia this can be avoided and that the judiciary can on its own examines the situation, looks self-critically at where the problems are, and admits those that are inevitable. If one is naked, sooner or later it turns out he or she is naked, even if he or she brags about how beautiful his or hers outfit is. At some point it can no longer be hidden, because otherwise, despite the fan support by the mainstream media in Slovenia of, as you call them, judicial errors , the reputation of the judiciary would not be among the lowest in the European Union. If it was just a matter of looks. Clearly it is not.
I suggest we do two things.
First, that the judiciary opens up, that people see how things are judged. Because with more transparency, those judges nor prosecutors who are proven to have messed things up, or wrongly sued and judged, will not be promoted as they are now.
If some high-profile processes were broadcasted live, there would not be 50 hearings, but maybe only three. If you are so convinced of how things are done right, how they are done according to the constitution, according to the laws, according to the criteria, then I do not understand why there is such a resistance towards broadcasting hearing and trials. We are in the 21st century, the Internet exists. Let’s do a one-year trial period and we will see who is right. In Slovenia, people are still the ultimate judges, yet the people are not allowed to see how it is being judged, not in general, let alone in concrete cases.
Some so-called experts are full of criticism of countries that are supposed to be worse than us, but in most of these countries, the judiciary is more open to the people and people can normally follow what is happening.
And on this basis, it is very difficult for a country that has the most overturned verdicts by the European Court of Human Rights to make progress.
This is my first suggestion.
The second proposal is that you seriously examine this omnibus Slovak law and that the Judicial Council or the judicial branch of the government in cooperation with the State Attorney’s Office – for which is not known in Slovenia whether it is a part of the judicial or the executive branch – proposes a law itself. In this way, we will avoid political debates, prestigious issues, and I think we will all be very pleased, when the principles, which you quoted earlier from the Constitution, will come to life in practice, but for now they are just dead letters on paper in most cases.
The Prime Minister Janez Janša also spoke in the continuation of the conversation, we are publishing an unauthorized standpoint:
The President of the Constitutional Court spoke a lot about respectful speech. Before I came to the meeting, I read the decision of one of the state prosecutors, who described the death threats as a respectful speech. On Slovenian streets people are performing and shouting “Kill Janša,” “Death to the act of supporting Janša”, even some at some faculty or academy are printing posters with this inscription. Following a laudable and historic act of reconciliation on the centenary of the Carinthian plebiscite on Saturday, thanks to the President of the Republic for this very important act, we experienced vandalism in the neighbouring country with the above slogan and the threat of death. See, a theoretical debate about importance of respect is one thing, but the harsh reality that happens with the assistance of a body that does not know whether it is a part of the executive or the judiciary branch, is something else. This same body does not know whether or not one billion of Iranian money laundered during the period of triple international sanctions is a crime. After ten years. It is very difficult to explain this international circles and it greatly affects our reputation in the world.
Regarding career paths. Maybe I was not precise enough. I myself agree that it is not necessary for a Supreme Court judge to be someone who has been a judge at all levels, including the High Court, and that only then he or she can run for the Supreme Court. That is too narrow-minded for me. But that the supreme judge becomes someone someone who was a student, an assistant, a professor, yet has never spent any time inside a courtroom, look, and that is not enrichment for me. If he or she was a lawyer, a prosecutor at least… It is necessary to formally include in the legislation some very clear definition of what this career path should look like. As of right now that is very loose. On the other hand, we have defined with approximately 5 acts, whether in the courtroom the chair should be facing north or south.
One last thing. The president of the Supreme Court says everyone has to do their own thing. On the part of those representing the executive or the legislative branch, there is agreement as far as the procedure is concerned that any proposal you make in terms of improving things, will not be hindered neither by the government nor Parliament. We will not be an obstacle, we will help . We can also suggest many things ourselves, but considering the situation in Slovenia, that would not be productive. I think that proposals should come from the judiciary, in sense of what to change. If you want a concrete proposal, Mr. Florjančič, I am very open to concrete proposals on your part, what we should change, but outside of those stating who should not be critiqued, I mean proposals about concrete matters. I suggest that you do your best so that judicial investigations do not last six years for banal matters and end after it suits someone politically. This is in the hands of the judiciary branch.