By: Sara Bertoncelj / Nova24tv
First, the constitutional judges annulled the part of the act ordering the parliamentary investigation in the case of Franc Kangler and others, which refers to the assessment of the correctness of certain court decisions and determining the responsibility of judges for decisions in specific court proceedings, and then they did the same in the case of public prosecutors and their proceedings. General State Prosecutor Drago Šketa explained that the independence and autonomy of state prosecutors are important, inter alia for the protection of the rule of law and ensuring a fair trial. However, Judge Jan Zobec notes that the response of the National Assembly with a parliamentary inquiry is still in place – especially if all the mechanisms remain just an empty legal-decorative trinket, window dressing for the European Commission. Constitutional Judge dr. dr. Klemen Jaklič wrote that he could not agree with those – essential – parts of the theorem, which are based on the assessment of the unconstitutionality of the parliamentary investigation into the alleged abuse of the prosecutor’s office, and emphasised: “The concept of prosecutorial independence, which is of course important, does not go so far in established democratic societies as to completely prevent parliamentary investigations against intentional abuses of the prosecutor’s office.”
The Constitutional Court (CC) therefore found that the law and the rules of procedure of the parliamentary inquiry are inconsistent with the Constitution. The National Assembly (NA) must eliminate the discrepancies within one year. The General State Prosecutor Drago Šketa said that the message value of all this was in accordance with Articles 135 and 3 of the Constitution, any such orders would not have intimidating effects on the work of state prosecutors, that they might deviate from prosecution or make different decisions. SDS MP Dejan Kaloh, who is also the chairman of the parliamentary commission, asserted that the commission always performed its work within the limits of constitutional competences and in accordance with CC resolutions. According to him, the commission did not carry out investigative actions and witnesses’ hearings related to prosecutors and witnesses. Recall, in November 2019, the CC suspended the implementation of the law and rules of procedure on parliamentary inquiry, which applies to prosecutors, and even earlier to judges. At the time of its establishment, the Greco and OECD anti-corruption commissions drew attention to the controversial nature of the parliamentary inquiry.
Constitutional Judge dr. dr. Klemen Jaklič wrote in his partly affirmative and partly negative dissenting opinion that a few months ago the majority of the Constitutional Court decided that suspicions of deliberate violations or abuses of judicial office within the institute of parliamentary investigation should not be investigated (parliamentary investigation into alleged abuses in systematic and at the same time systematically unsuccessful, proceedings against Franc Kangler). This time, a similar majority (then six, this time five judges) decided the same regarding the parliamentary investigation into suspicions of abuse of the prosecutor’s office.
Prosecutorial independence does not go so far that intentional abuses of the prosecutorial function should not be investigated
Jaklič agreed with this ruling in the parts in which they unanimously decided to reject parts of the initiatives and the constitutional complaint. However, he could not agree with those – essential – parts of the theorem, which are based on the assessment of the unconstitutionality of the parliamentary investigation into the alleged abuse of the prosecutor’s office. Such an assessment is based on a clearly untrue and inconsistent with the regulations in democratic countries conclusion that even suspicions of deliberate violations or abuses of the prosecutorial function within the institute of parliamentary inquiry may not be investigated. According to this standpoint, MPs are not allowed to investigate abuses in the ranks of prosecutors even in court cases that have already been concluded. Likewise, prosecutors should not even be allowed to testify in the context of a parliamentary inquiry (albeit on a set of concrete cases already decided).
“Everything I explained about the apparent untruthfulness of this decision and its inconsistency with the arrangements in democratic societies in a separate opinion on the decision on judges a few months ago, and in more detail in my public contribution that followed, mutatis mutandis applies to the parliamentary inquiry of systematic abuses in the ranks of prosecutors. The concept of prosecutorial independence, which is of course important, in established democratic societies does not go so far as to completely prevent parliamentary investigations against intentional abuses of the prosecutor’s office,” Jaklič wrote, adding that, on the contrary, such investigations are, as has been shown in detailed comparative studies, in democratic societies a regular component of the mechanism of brakes and balances within the principle of separation of powers. The decision of the majority, which conceals these facts from the Slovenian public (and only in this way achieves its decision result), is not based on real facts and thus not on legal arguments, so Jaklič could not support it. In order to avoid repeating the constitutional review, which does not deny these facts from democratic countries, he merely referred again to what has already been explained in the above-mentioned separate opinion and to an even more detailed public contribution from a few months ago.
The decision is not a surprise – of course, it is not a surprise given decision U-I-246/19 on January 7th, 2021
Although state prosecutors are part of the executive branch, they have a special position within it. The public prosecutor’s office is independent in relation to other executive bodies, and independent in relation to the legislative and judicial authorities. However, neither means that this organ is outside the mechanisms of brakes and balances. The meaning of the division of power, and therefore also the independence of the prosecution, is not in the complete absence of any influence and control of other branches of government. If that were the case, we would have separate authorities, each of which could abuse its power at will. This is especially true for prosecutors which, in cases of failure to act in cases where there is no direct victim, who would take over prosecution as a subsidiary prosecutor (e.g. abuse of office, corruption offenses), it can distort the rule of law – initiate criminal proceedings against some, not against others. “It is with this, with the asymmetric functioning of the rule of law, that we have the biggest problems in Slovenia,” says Judge Jan Zobec. Also with unfounded criminal proceedings against certain policies, which then end in acquittals or denials, they leave behind ruined lives – personal and professional. This is also noted by the CC, when in p. 76 says: “If the state prosecutor decides not to request the initiation of criminal proceedings against a certain person, or if he later withdraws from the prosecution, his decision cannot be revoked or changed by any other state body. The public prosecutor’s office is therefore the only state body that decides whether the court will assess a person’s criminal responsibility at all.”
If all the mechanisms remain just an empty legal-decorative trinket, window dressing for the European Commission, then the response of the National Assembly with a parliamentary inquiry is appropriate
According to Zobec, the Kangler case is outstanding in this respect, and a reasonable observer could suspect of political instrumentalisation, we can also say the abuse of the prosecution. It is difficult to expect the prosecution to investigate and prosecute itself, especially when it comes to systemic deviations and not just individual corruption slips. In the Kangler case, have the mechanisms invoked (as an alibi) by the Constitutional Court in paragraph 84 been activated? They did not. Were any of the prosecutors involved in a series of unfounded prosecutions against Kangler’s policies in any of the proceedings listed in recital 84 of the CC decision? “As far as I know, no,” Zobec answered the question. “And if all these mechanisms remain just empty legal-decorative trinket, window dressing for the European Commission, then the response of the National Assembly with a parliamentary inquiry is appropriate – a response resulting from the failure of the rule of law in such an important area as abuse of law (prosecution) for political purposes.”
Such a topic, Zobec aimed at the topic of the parliamentary investigation in the Kangler cases, is, of course, a political topic – a political one, because it is a suspicion of political, systemic abuse. And if anyone, the National Assembly, as a political body par excellence, is the first to be called upon to discuss these issues, which are even more important for the rule of law. However, in order to be able to discuss this successfully and effectively and take appropriate measures within its competences, it must have complete and accurate information in front of it, Zobec believes. The lever to get this information is a parliamentary inquiry.
“I regret that the Constitutional Court has consolidated its, in my opinion, very wrong and also dangerous view of the division of power and the meaning of brakes and balances. The message is bad and catastrophic for the rule of law, which aims to prevent the arbitrariness of the authorities. After all the mechanisms of self-control have failed, even in already concluded court cases, MPs are not allowed to investigate and discuss them – even prosecutors in such legally closed cases are not allowed to be summoned for questioning. What does that mean? I am afraid it means opening the door to the prosecutor’s arbitrariness and abuse of power – at the same time inadmissible restriction of the prerogatives of the parliament and free debate in it,” concluded Zobec.
