By: Sara Bertoncelj / Nova24tv
Which cases against Slovenia are being dealt with by the European Court of Human Rights (ECHR)? Among other things, the Siol web portal recently highlighted the unusual trials of our constitutional judges, including Rok Čeferin. Boštjan M. Turk also sent a complaint to the ECHR, as the Constitutional Court intervened in his acquittal this year – which is contrary to the practice of the Constitutional Court and also extremely unusual. The dynamics of the operation of the Constitutional Court are also unusual, allegedly especially so ever since Rajko Knez took over the leading position. Namely, certain proceedings take more than five years to be resolved, which is completely unreasonable – and this is also one of the things that the judges in Strassbourg are deciding on. The cases before the ECHR largely express the problem of the political bias of the Slovenian judiciary and also part of the domestic intertwining. An important role will also be played by the national judge in the cases mentioned below; however, he will be excluded in the cases related to the Čeferin Law Firm.
One of the latest appeals from Slovenia was sent to the European Court of Human Rights by Boštjan M. Turk, a columnist and vice-dean of the European Academy of Sciences and Arts. Namely, the Supreme Court acquitted Turk in the case of insulting the historian Jože Pirjevec, and the Constitutional Court then intervened in the acquittal in April of this year – which is contrary to the usual practice of the Constitutional Court. According to the majority in the Constitutional Court, Turk’s claims were deemed to be insulting, even though he did not publish any untruths. “The decision to return the trial of Prijevec against B. M. Turk to the first instance court after more than a decade is wrong, biased, and severely ideologically motivated. The explanation of the decision also contains substantive and grammatical errors. It is contrary to justice and truth. I will transfer the case to a foreign court,” Turk commented on the Constitutional Court’s move on Twitter.
The newspaper article that is the subject of the court case is entitled Referenti in renegati (Clerks and renegades), and it was published in the Reporter magazine in 2011. Turk is accusing Prijevac of “entering into an unusual type of being a renegade: he made his name sound more Italian, even though there were no external pressures or reasons for him to do it. He did the opposite of what fascism did to Slovenians of the coastal region. Sixty-one years after the burning of the Narodni dom (National Hall) in Trieste, he published one of his last works and sovereignly signed it (like everyone else at the time) with the name Giuseppe Pierazzi. By his own example, he thus confirmed the ‘correctness’ of fascist diversity policy.” Prijevec only made his name sound more Slovenian in 2002, and it is a fact that the Supreme Court has already acquitted Turk years ago, as the allegations against him were still within the acceptable framework of the constitutional right of freedom of expression and the right to freedom of expression and information under the European Convention on Human Rights. “Where was Mussolini in 2002, where was the fascist oppression and violence against Slovenians? That is a rhetorical question that everyone can answer for themselves,” Turk said, adding the question: “What is the point of this retrial, expect for it to further burden the taxpayers?”
Čeferin ruled on the same matter at courts of two different instances; other irregularities were also revealed
The appeal against the Constitutional Court Judge Rok Čeferin also got a lot of attention from the public – namely, Čeferin decided on the same matter at two courts of different instances. When the Constitutional Court Judge learned that proceedings against his conduct were pending at the ECHR, he suggested to his fellow Constitutional Court judges that they change the final decision, which is exactly what happened. Namely, this happened in the case of Kodrič v. Slovenia – in 2014, the Bar Association of Slovenia refused to accept the application of the lawyer candidate Peter Kodrič and add him to the register of lawyer candidates. At the time, Čeferin was a member of the nine-member board of the Bar Association of Slovenia, which voted to reject Kodrič. The candidate appealed the decision at the Administrative and then the Supreme Court, which rejected it. He therefore decided to lodge a constitutional appeal, which was rejected by the Constitutional Court in 2019 – and Čeferin was, once again, part of the senate that decided on the matter. When the appeal before the ECHR came to light, some other irregularities were also revealed. Among other things, judge Marijan Pavčnik ruled on the verdict against his own son, Supreme Court Judge Tomaž Pavčnik.
The European Court has repeatedly said that rulings should be made in a few days, and not after a few years
And then there is the case of the Constitutional Court Judges: Matej Accetto, Špelca Mežnar, and Rok Čeferin did not detect any violations in the proceedings, and so the ECHR is now deciding on Milan Trol’s appeal. Trol, who was the organiser of the concert of the Croatian singer Marko Perović – Thompson, won the legal case in the Administrative Court twice because the state acted outside the law; however, it was already too late for the concert to actually take place, and the epidemic had also already begun by then. The European Court has repeatedly stated that in cases of a ban on an event, the court should make a decision within a few days, not after a few years.
Slovenian courts did not take the surgeon’s claims that the trial in Israel was not fair into account
Neurosurgeon Vito Dolenc also sent a complaint to the ECHR. He was sued by an Israeli who was left disabled after a failed complicated brain operation. The court in Israel sided with the Israeli and ordered the surgeon to pay compensation in the amount of more than one million euros – the newspaper Delo even wrote that the amount was ten million euros, also due to default interest. Slovenian courts recognised Israel’s verdict and did not take Dolenc’s claim that the trial in Israel was not fair into account.
Convictions against robbers and murderers are later deleted from their record; however, drunk driving convictions apparently stay there forever
Last but not least, it is also worth mentioning the Slovenian citizen who lost his driver’s licence because he refused an alcohol test. After five years, he asked for the conviction to be removed from his record, but his application was denied. The Supreme Court rejected it on the grounds that the aim of keeping data on violators for life is to increase road safety, and the Constitutional Court did not take his constitutional complaint into consideration, saying that this was not an important issue, the web portal Siol reported a year ago.
As a result, twelve experts from ten countries asked the ECHR in a joint letter to consider the proceedings against Slovenia, as the ECHR does not allow permanent data retention. What is also interesting is that in Slovenia, in the case of robbers, the sentencing is removed from their record after eight years, and for murderers, it is removed 15 years after they serve their sentence. Siol also cited the example of a German citizen who is facing up to 385 years in prison in the United States – for smuggling Chinese honey with false labels, which contained antibiotics and toxic substances. Slovenian intended to extradite him to the United States; however, the man in question then sent an appeal to the European judges.
The ECHR will also decide on whether the trials against Bavčar, Šoba, and Škoberne were fair
The ECHR is also ruling on the appeal of Igor Bavčar, who claims that the trial against him was unfair due to the statement of the then-Minister Goran Klemenčič, who said that heads would roll if Bavčar’s case became obsolete. In the appeal, Bavčar claimed that the judges took Klemenčič’s statement as instruction and a threat. Klemenčič said this in a television appearance when Bavčar appealed against the first-instance verdict before the Higher Court in Ljubljana, claiming that the Istrabenz case was not a criminal offence at all. Bavčar’s appeals were rejected by the Higher, Supreme, and also the Constitutional Court – the latter believed that a statement could not affect the appearance of the impartiality of the trial. Only Dr Klemen Jaklič opposed the decision, as he believed that the dilemmas of the impartiality of the trial should be reconsidered by the court. The ECHR has taken Bavčar’s appeal into the communication phase – which happens very rarely, in less than five percent of appeals. According to our information, the complaint does not only concern procedural errors but also material ones. In addition to Bavčar’s case, the question also arises of whether the trials against Milko Škoberne, who was sentenced to five years in prison for taking bribes and Bojan Šoba, who was extradited to Slovenia by Canada after six years of hiding due to him receiving bribes, were fair.
Knez rejected the allegations of backlogs, but the cases speak for themselves
The European judges will also decide on whether Slovenia is making it possible for the blind to cast their vote appropriately. Namely, the Constitutional Court has ruled that the blind can vote with the help of a stencil, which does not allow for preferential voting or choice when there are many candidates. For two years now, the European judges have also been dealing with the Supreme Court’s ruling that a disabled person cannot ask for access to a polling station in advance but can only go to court after the elections. Last but not least, the judges in Strasbourg are also assessing the unreasonably long proceedings in our Constitutional Court – the court should make its decision in four years max, which does not happen in all cases in Slovenia. Interim injunctions should be decided even quicker – within three weeks.
On the 5th of March 2021, on the show Odmevi (Echoes), the President of the Constitutional Court Rajko Knez rejected the allegations of backlogs, adding that the proceedings take on average a year and a half. Constitutional Court Judge Katja Pugman Stubbs described the data on the five-year trials that were presented in Delo as “absurd insinuations.” But the fact is that in February 2016, an eleven-year-old sixth-grader filed an initiative with the Constitutional Court to review the constitutionality of the Secondary Schools Act for violating children’s rights and the right to education in choosing a secondary school. Two years later, as an eighth-grader, she asked for a temporary suspension so that the court could have made a decision in the case before her enrolment in high school. The Constitutional Court replied that it would not decide on the temporary suspension, as the substantive decision was already being prepared. The whole situation ended (or did not end) in such a way that, to this day, the Constitutional Court has still not ruled on either the initiative or the motion for temporary suspension. The proceedings have been pending before the Constitutional Court for five years and three months, and the court has not ruled on the motion for the temporary suspension for more than three years. It seems that the European Court of Human Rights has a lot of work with Slovenia.