By: Peter Jančič (Spletni časopis)
CPC sent two statements to the public due to the strong pressures from Urška Klakočar Zupančič (Svoboda) and also from MP Janja Sluga (Svoboda). In the evening, after the entire commission issued a statement, CPC President Robert Šumi personally responded as well.
In response to the sharp political pressure from Klakočar Zupančič to address Constitutional Court Judge Klemen Jaklič, who is typically very critical of abuses of power by the ruling party within the Constitutional Court, albeit in the minority, Šumi replied:
“The Commission certainly lacks no courage in handling individual cases; regardless of the persons involved, we carry out our work professionally. In the specific case of the Constitutional Court judge, we are already conducting proceedings within our clear competencies, namely in the areas of business restrictions and asset status. However, if the legislative drafter, the Ministry of Justice, provides a non-binding opinion that the Commission is competent to assess the incompatibility of Constitutional Court judges, we will take that opinion into account and, accordingly, change the practice that has been in place at the Commission since 2011 and has not been problematic until now. As we announced last week, however, substantive, or procedural legislative ambiguities, in our opinion, still do not mean that what is legal is also legitimate, as evidenced in the specific case.”
CPC: Even if we had jurisdiction, the sole proprietorship has already been closed.
“To avoid misunderstandings and misinterpretations, it must be clarified that even if the Commission were competent to address the specific case, it would not be able to initiate the incompatibility determination process anymore, as the Constitutional Court judge has allegedly already resolved the incompatibility of functions. In accordance with the provisions of the Integrity and Prevention of Corruption Act, the Commission can only initiate proceedings in cases where there is still a suspicion of incompatibility of functions. If the Commission finds that a public official is engaged in an activity incompatible with their function, it calls upon them to rectify the illegal situation within a certain period. Administrative sanctions are provided only in cases where the public official does not rectify the incompatibility of functions even after the Commission’s call. Because the sole proprietorship in the specific case is no longer active, and the Constitutional Court judge has possibly already resolved any incompatibility of functions, the Commission (even if competent to handle the matter) would not be able to initiate fact-finding and administrative proceedings anymore.” This was already pointed out by the Commission for the Prevention of Corruption, led by Robert Šumi, indicating the confusion regarding who is responsible for overseeing the conduct of the Constitutional Court judge, a process overseen by the National Assembly. It was from there that President Urška Klakočar Zupančič initiated the whole affair when she announced to the public that she expected the immediate resignation of Constitutional Court Judge Klemen Jaklič. The case was referred to the CPC. However, the CPC returned the case to the National Assembly. The National Assembly then sent it back to the CPC. And now, the CPC refuses to proceed with it once again.
However, it is already clear that according to the Constitutional Court Act, Jaklič did not act illegally by having a sole proprietorship for conducting higher education activities. Even if it were contrary to the law, according to constitutional provisions, his mandate could not be revoked because of it. Constitutional judges are protected from political harassment by the authorities. CPC responded to the parliament that they are not competent to assess the conduct of a constitutional judge because it is determined in a special law on the incompatibility of functions of constitutional judges, namely in the Constitutional Court Act, which does not give them jurisdiction for that. From the parliament, the president of the mandate commission Janja Sluga (Svoboda) returned the ball to CPC with the assessment that they should reconsider whether they are perhaps competent because the Constitutional Court has ruled in the past that the parliament, due to the principles of separation of powers, is not competent for constitutional judges.
Constitutional Judge Klemen Jaklič had already dissolved the sole proprietorship long before the leftist media and politicians began their campaign against him, part of which was Klakočar Zupančič’s expectation that he would resign and her call for CPC to investigate the case. It is unusual that for many years when Jaklič had an open sole proprietorship, no one questioned it. Moreover, the Erar system shows that no funds from state institutions were received into this sole proprietorship.
In response to the reminder that this sole proprietorship no longer exists, and therefore they cannot do anything even if they were competent to assess it (and if it were indeed impermissible), CPC also wrote that they would request an opinion on jurisdiction and legislation from the Ministry of Justice, which, following Dominika Švarc Pipan’s resignation (formerly in SD), is led by Andreja Katič (SD) due to the strange purchase of a building for the judiciary:
“The Commission for the Prevention of Corruption has examined the letter from the Mandate and Election Commission of the National Assembly (MEC NA) regarding jurisdiction concerning the assessment of the incompatibility of functions of constitutional judges. The Commission does not wish for any further shifting of responsibilities; therefore, it will request an opinion from the legislative drafter. For several years now, the Commission has been warning about the inadequate regulation of the field of incompatibility of functions in individual laws and advocates for a unified regulation in the Integrity and Prevention of Corruption Act (ZIntPK). It advocates for clear material and procedural legal specifications, based on which it could effectively and lawfully conduct proceedings, contributing to the strengthening of the rule of law.”
“In 2021, the Commission addressed a proposal to the Government of the Republic of Slovenia to harmonise the area of incompatibility of functions, however, neither the government nor the National Assembly have yet taken action on this matter. Therefore, we reject any insinuations that we are avoiding responsibility, as might be inferred from yesterday’s statement by the President of the MEC in one of the media outlets. We emphasise that the Commission’s position, that it is not competent to assess the incompatibility of functions of constitutional judges in accordance with the ZIntPK, has remained unchanged since the ZIntPK came into force in 2011. Namely, the ZIntPK explicitly assigns the Commission the competence to oversee the incompatibility of functions solely for the provisions of the ZIntPK, as stated in the first paragraph of Article 12.”
The area of incompatibility of functions is generally regulated in the systemic law ZIntPK, but this area can be regulated differently by individual special laws. The ZIntPK regulates the area of incompatibility both materially (which activities or functions are incompatible) and procedurally (who and in what procedure decides). Other sectoral laws may regulate the area of incompatibility both materially and procedurally (e.g., the Judges’ Service Act) or only materially, without specifying who (which body) and in what procedure decides on any incompatibility. Such is the case with the Constitutional Court Act.”
Since the General Administrative Procedure Act does not specify who decides in a potential dispute over jurisdiction between the Commission and the National Assembly, and because the Commission does not wish for any further shifting of responsibilities, it will submit a non-binding request to the Ministry of Justice as the responsible authority under both the Constitutional Court Act and the ZIntPK, for an opinion on which body is competent to decide on incompatibility when sectoral laws regulate incompatibility of functions only materially.
The Commission can initiate proceedings only when there is a suspicion of the existence of incompatibility.
To avoid misunderstandings and misinterpretations, it must be clarified that even if the Commission were competent to handle a specific case, it could no longer initiate proceedings to determine incompatibility since the constitutional judge has presumably already resolved the incompatibility of functions. According to the provisions of the ZIntPK, the Commission can only initiate proceedings when there is still a suspicion of the existence of incompatibility of functions. If the Commission finds that a functionary is engaged in an activity incompatible with their function, it calls on them to rectify the illegal situation within a specified period. Administrative sanctions are provided only in cases where the functionary fails to rectify the incompatibility even after being called upon by the Commission. In the specific case, since the sole proprietorship is no longer active and the constitutional judge has presumably already resolved any potential incompatibility of functions, the Commission (even if it were competent to handle the matter) could not initiate investigative or administrative proceedings.