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nedelja, 16 januarja, 2022

Supreme Judge Jan Zobec: Judges build their legitimacy on knowledge, integrity, and independent intellectual attitude – and professionalism is also proven by a diploma

By: Sara Bertoncelj / Nova24tv

Jan Zobec is a supreme judge, who has both a diploma and a bar exam – and he is not afraid to show these documents. Or rather, it is not out of his honour. Judges build their legitimacy on knowledge, integrity, independence and independent intellectual attitude, and professionalism is, of course, also proven by a diploma. In the show, the judge commented on the inappropriate communication of the Supreme Court, some controversial decisions, and said that in the Patria case the canon of civilisation was violated and that it was a clear violation with serious consequences. The former constitutional judge believes that judges are called to participate in legal discourses, because law is a living organism that grows with facts – which is not possible without discourse. The public is also one of the guarantors of the fairness of the procedure, so the hearings should be public.

Do you have a degree was the first question of the host of the show Odkrito, Igor Pirkovič, who hosted the Supreme Judge Jan Zobec. Currently, of course, this is still an active issue, as the public has been talking about it for about two weeks now, regarding Branko Masleša’s diploma. Zobec, of course, answered in the affirmative, adding that he could also show it, which Masleša did not do. The latter told Dnevnik that such showing of evidence was beyond his honour. The presenter also asked Zobec if there was any talk of finding Masleša’s diploma in the corridors of the court, and the judge replied that he had so much work lately that he rarely walked in the corridors. However, he remarked that he might receive some praise tomorrow, due to his appearance on RTV, as in the eyes of the management structure this is “the right medium.”

The interlocutors agreed that the problem of the Supreme Court or the public relations service of this body is the way of communication. There are too many comments and far too few messages. Facts should be presented, not political dialogues. Namely, they descend on political discourse, express value judgments, and settle accounts politically. It is worth mentioning that not only was the journalist threatened with a lawsuit for inquiring about his diploma, but he also had an argument with Prime Minister Janez Janša when they responded to one of his tweets. Zobec pointed out that such communication is not appropriate, adding that in the case of a journalist, they had twice violated the constitution. Namely, the court prejudged the outcome of the proceedings and pressured the journalist. The press was thus sent a message that by questioning they risk a lawsuit, moreover, because the Supreme Court has the final say, they will also be convicted. Zobec reiterated that this was unacceptable, but at the same time regretted that he did not draw attention to what was happening.

The silence also indicates a certain bias of the media

Zobec was also amazed that this inadmissible event had passed so quickly. Judges should not just watch silently how the public relations department works. On the other hand, there is the media – their silence indicates a certain bias of the media. If anyone, of course, the public media house should have reacted, but it was silent. RTV also reported on Masleša’s diploma only today, after almost two weeks. It was completely different in the story with MP Branko Simonovič, who was concretely attacked by journalist Eugenija Carl. The Supreme Court judge pointed out that the two cases were completely different. Namely, the MP draws his legitimacy from the will of the people who elected him – which means that a diploma is not even that important. Judges, on the other hand, build their legitimacy on knowledge, integrity, independence, and an independent intellectual attitude. Of course, professionalism is also proven by a diploma and a bar exam.

The greater the doubt, the more trust in the judiciary declines

The host remarked that when it comes to diplomas from Sarajevo, the question about a diploma is appropriate, it is known that diplomas were bought there, and not so long-ago scandals echoed from there. Zobec agreed and said that if he found himself in the place of Masleša, he would immediately submit the diploma as proof – just so as not to further strengthen the doubts. The more doubt there is, the more trust in the judiciary declines, and this is not in anyone’s interest – least of all the judiciary. He also said that in Slovenia it is quite different, they have mostly known their colleagues since their student years, and he does not doubt any of them. Pirkovič also asked the former constitutional judge about the conduct of the bar exam. Some doubts are arousing about this as well with Masleša, he supposedly did it less than a year after the end of his studies, and he also served compulsory military service at the same time. Zobec is on the commission and is one of the examiners in the bar exam. He said it takes two years of internship before taking the exam. During this time, the candidate gets acquainted with the work and participates in the preparation of reports, drafts, and is also present at hearings. This is training for future work, as he walks through the entire justice system, and the candidate must also prove himself there – mentors give grades, the candidate must carefully write a diary. In short, the bar exam is not done so easily.

Masleša was present at some unusual, if not controversial, court decisions

The interlocutors also touched on the recent decision of the Supreme Court to release the convicts in the Balkan Warrior case. Branko Masleša, among others, voted for the annulment of the verdict in which several drug smugglers were sentenced to long prison terms. Judge Barbara Zobec was against, and she also wrote a separate opinion. The verdict and the separate opinion have not been published yet. This decision certainly raised the question of how to form a senate to decide on such matters. Among other things, Zobec explained that the constitution enshrines the right to a lawful judge, which is an element of the right to a fair trial and judicial protection. It means that the judge is not chosen by human will, but by chance. This principle is especially present in countries where they have had bad experiences with the kidnapping of the judiciary, with totalitarianisms. There must therefore be coincidence both in the allocation of cases and in the formation of the senate. But a poor amendment to the 2012 law made sure that, as far as the formation of the senate is concerned, the annual schedule sat down. The president of the court is authorised to determine the annual schedule – and this is taken literally by the president at the Supreme Court. He can thus influence the composition of the senate with his will.

Pirkovič and Zobec also discussed the case when Masleša decided that there was no legal basis for imposing a penalty for not wearing masks indoors. In this case, too, Zobec was against the decision and wrote a dissenting opinion. Zobec pointed out the absurdity that not even a fine was imposed, but only a warning – but even that was too much, obviously the police should not even warn. We have an independent judiciary, Pirkovič remarked. Zobec also explained that it is difficult to react with laws during an epidemic – the situation changes from day to day, it is necessary to react quickly. However, it was unusual in this case, perhaps even ridiculous, if it were not tragic that the Supreme Court ruled that the provision in question was too narrow and that it went beyond its jurisdiction – while the Constitutional Court considered the opposite that there is an inconsistency with the constitution at the ZNB because the power is set too broadly.

Patria: there was a clear violation of human rights, which was clear from the very dictum

Pirkovič also remembered the Patria affair with the guest, for example – in this case Zobec also wrote a dissenting opinion. Let’s recall that in June 2014, in an official decision of the Constitutional Court, most judges considered that the alleged human rights violations were not demonstrated by the degree of obviousness required for the Constitutional Court to decide before exhaustion of extraordinary legal remedies. Five judges and the president of the court voted in favour of rejecting the appeal, while three judges, in addition to Zobec, Mitja Deisinger and Ernest Petrič, gave dissenting opinions. They believed there was a clear violation of human rights, which was clearly evident from the dictum itself, and that key points of reference were missing to place the act in temporal and local coordinates.

According to Zobec, the verdict was contrary to a fundamental postulate from antiquity, which was explained by Thomas Hobbes in Leviathan when he spoke of the word “crime”, which means to perceive. It follows that only what is perceptible in the external world can be a tangible crime, and an individual can also be accused of that act. So, this is not the case for bad intentions, they are only held accountable before God. In Patria, this canon of civilisation was violated, it was a clear violation with serious consequences – not only for the victims of the procedure, but also for the state of democracy, they threatened the legitimacy of at least one election. When asked if there was any instruction on the matter, Zobec answered only sapienti sat – smart enough.

Rule of law in Slovenia and selective export to the European floor

In the show, they also talked about how things are selectively exported or problematised – Pirkovič asked Zobec for his opinion on the state of the rule of law in Slovenia. In response, the judge proposed a monograph written by Matej Avbelj and Jernej Letnar Černič, entitled The Influence of European Institutions on the Rule of Law. It was published in 2020, in the most influential publishing house, and Gorazd Justinek contributed a chapter on economics. In the monograph, the authors used the scientific method to assess the state of the rule of law in different subsystems. Zobec also suggested Rado Pezdir’s Parallel Mechanism of the Deep State for reading. They also mentioned that there is a legal asymmetry, which is one of the key problems of the rule of law. On the one hand, there are the victims of judicial “mistakes”, Milko Novič, Franc Kangler, Patria; on the other hand, there are certain controversial decisions that Zobec did not even list – but he almost certainly had Stožice in mind.

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