By: Petra Janša
“Everyone who has a more critical view of the functioning of the Slovenian legal state, especially the judiciary, who are not mediocre, will find it difficult to articulate their thoughts in Slovenia, because sooner or later they will encounter problems. Therefore, they resort to a foreign language in which they enjoy freedom. In the Slovenian language, this freedom is limited. It is, of course, certainly a bitter realisation that for more than thirty years since independence, judges have had freedom of expression only in a foreign language and can safely speak, write and discuss publicly only abroad, in a foreign environment, in a foreign language,” the Supreme Judge Jan Zobec told us in a conversation, who, due to his public records and statements, has repeatedly appeared before the Ethics and Integrity Commission of the Judicial Council.
DEMOKRACIJA: Mr. Zobec, do you think that the existing legal framework provides sufficient guarantees for a democratic state, or do you think that the judiciary could contribute more to social coexistence and trust in the functioning of the state?
Zobec: There are two levels here. The first is the constitutional, formal legal framework, and the second is the life of this formal legal framework in practice. I can say that the formal legal framework is good. On a dogmatic level, on paper, it provides all the conditions of the concept of constitutional democracy. Problems arise in the operation of the demands of democracy in practice, or in the translation of the legal framework into practice. Here, however, the gap is larger in some places, smaller in others, and the state of democracy and the rule of law can be measured by this gap between the postulated and the empirical. When we compare countries and their constitutional arrangements, we see that they are very similar in their foundations. Problems arise at the implementation, practical level, which is why we say that individual countries have different levels of development of democracy and the rule of law. The courts play a key role in this – they are a pillar of the rule of law. It depends on them whether the law rules the country, whether it is ruled by law, or whether law is being abused and is just a dead, abstract letter on paper, as it is in many parts of the world, especially if we travel to the southeast and east. Russia certainly leads the way here as a typical example of autocratic legalism, where the government is governed by gross abuses of the law, even though Russia is also nominally a constitutional democracy. The third factor in this game – besides the formal framework and constitutional bodies – is the people and our culture, habitus, the level of our normative integration. We all know that the law must be effective, especially primary, because, as the Americans say, it is not possible to hang a policeman on everyone’s elbow. But if a critical mass of people has not internalised the values of constitutionalism and does not respect the law, does not take it seriously, if people are not normatively integrated, then the good work of the courts does not help either. Constitutional and democratic culture is a long-term process. Slovenia will be a full-blooded democracy only when the habitus of the majority of the population internalises the values of constitutional democracy. This requires several generations, as well as the sympathy of the international environment and the determination of key factors in society, that is, those who are the bearers of social and political power, so that the habitus develops and forms in the direction of a democratic culture. It concerns three pillars of social habitus formation: the family, the educational system, and the media. That is why key cultural battles are being fought in these fields, both in our country and in the West.
DEMOKRACIJA: These are the pillars that you have talked about many times before…
Zobec: Yes. These are the pillars that form the habitus. If you allow me, I will quote the famous French sociologist Pierre Bourdieu: habitus is the fundamental structure of social life. The way we behave towards objective possibilities and behaviour about ourselves. Habitus are, in fact, values and conceptions of the right ways of action of the subjects of society. When subjects repeat the habitus, they recreate, restore, strengthen, and consolidate it, without realising that they are legitimising it in this way. The problem in Slovenia is the same as elsewhere in the post-totalitarian world, which Bourdieu also notes is that there is yesterday’s man in each of us. And this yesterday’s man absolutely and inevitably dominates in each of us simply because the present is not enough to compete with all that has accumulated in each of us in the past in which we were formed and of which we are the result. Creating a democratic culture is a long-distance race. For this, there must be the will of key factors in society to pay attention to these three pillars of habitus formation: family, education and upbringing, and the media.
DEMOKRACIJA: Does cancelling fines just because they were imposed under a different government affect the perception of the rule of law and the stability of the system? Does the mass annulment of fines also indicate the possibility of mass annulment of court decisions retroactively?
Zobec: No, I do not think so. Something like that would be unconstitutional, as it would retroactively interfere with acquired rights. Retroactive annulment of a court decision is not possible, except in cases provided for in advance by law and according to a procedure provided for in advance by law. This is primarily a restoration procedure and other extraordinary legal remedies. However, this cannot be done by some arbitrary political will, even if it is expressed in some law, which would retroactively invalidate court decisions. Such a law would be unconstitutional. Something else is, of course, amnesty, which is possible. There is nothing wrong with the repeal of fines, in a grossly simplified constitutional sense, because it does not interfere with human rights. It is bad, however, that by repealing fines, one of the principles of the rule of law is broken: stability and continuity of the law, predictability, legal certainty. Democracy means rule by the people, but within a constitutional framework. In a democracy, power changes based on the will of the people, expressed in free and fair elections, peacefully and without violent upheavals – this is the essence of democracy. And when this is the case, the new government can only continue where the previous one left off, on the basis of the same legal order, which, in accordance with the development of human society, complements and upgrades it. However, this does not mean a radical change in the legal paradigm. It is not good if the new government understands this transition as a mandate to change the paradigm, as a transition from one system to another. The point of view that everything will be different from now on, that there will be some kind of breakthrough, like the breakthrough with the dictatorship more than 30 years ago, is wrong. Slovenia is, at least formally, a democracy. We have a constitution, and we have all the constitutional bodies that more or less function (successfully), we have all the necessary legal infrastructure, we are members of the European Union and the Council of Europe, NATO, we meet all the formal conditions for the successful functioning of constitutional democracy. So, we do not need a paradigm shift. What we need is a change in the democratic constitutional and legal culture of the people. This needs to be worked on.
DEMOKRACIJA: Do you not think that there is a strong political will in deciding on the annulment of already adopted decisions?
Zobec: Political will or desire may exist, but in constitutional democracy political will is mentioned by the constitution. And the constitution prohibits retroactive interference with acquired rights.
Such behaviour would interfere with the very core of the constitutional identity. I think the worries here are unnecessary. Something else is the annulment of imposed fines. Otherwise, such an annulment would not interfere with human rights. However, it would be inconsistent with the principles of the rule of law, just as it would be inconsistent with these principles if, for example, the previous authority adopted a regulation prohibiting driving through red lights and fines were issued to violators at that time, and the new authority would then annul all these fines only because they were pronounced during the previous government. With these fines, the previous authorities protected the safety of road users. And it is similar with the fines for non-compliance with protective measures during the deadly epidemic, when there was no vaccine yet. Therefore, I believe that this measure does not contribute to the normative integration of the population and to the strengthening of constitutional democratic culture. On the contrary, it weakens this culture.
DEMOKRACIJA: The term of office of the President of the Supreme Court is coming to an end, and it is heard that no one even wants to run for office. Is it such a critical situation in the judiciary in general or only in the Supreme Court?
Zobec: It is usually the case that the judges, who are dedicated to their profession, do not even care much about the position of the president. They are engrossed in their work, they prefer to deal with law, trial rather than leadership and management, administration, judicial policy. Therefore, you will have a hard time convincing judges who would be good court presidents to run for office. Once, after much persuasion, we managed to persuade one such person, but then, due to political interference, this story ended badly. Probably precisely because he would be an extremely good president. The position of President of the Supreme Court is a politically exposed position in our country, so politics likes to interfere in its appointment. This is in the nature of things, or by law, because the president is proposed by the minister and approved by the National Assembly. Perhaps it would be better if the decision about the president was left to the supreme judges, just as it is in the constitutional court. Otherwise, the presidential function in post-socialist countries is highly studied. It was abused several times, mostly in Slovakia. The case of the infamous judge Štefan Harabin is well known about which scholarly monographs and discussions have been written. I would rather not talk about Slovenia here, but if you allow me, I will quote two Czech academics who say: the position of the president of the court is a magnet for ruthless and rude politicians who act by abusing external resources (outsourcing) interfering in courts and judges, by leaving their dirty work to the presidents of the courts. Such political leaders then easily defend themselves against criticism that it is a direct interference in the judiciary. For these jobs, they use the presidents of the courts to support and implement their agenda through them as a transmission belt. With this, they act more covertly than if they directly interfered in the work of the judiciary and judges and used some kind of coercion. Here is an interesting comparison of the Norwegian researcher Peter Čuroš, who works in Oslo, but is otherwise Slovak, with Bentham’s Panopticon. His Panopticon is a circular prison building where the prisoners are isolated from each other, and in the middle of this building is a box where the inspector sits to supervise them. None of the observed can see if the inspector is observing them. His view, which spans the entire circle, allows him to control all the prisoners. Čuroš uses this metaphorical illustration by saying that the Party once sat in the inspector’s box, but today the presidents of the courts sit there. He convincingly argues that this is the biggest problem of the post-socialist judiciary in Slovakia. The key here is the so-called auto-poietically renewing habitus of submission, obedience, and fear of judges, which has its roots in the former regime. Using Bourdieu’s arguments, he substantiates his thesis that this habitus is transferred to the new judges, who sit in the same circular building as before, except that they are no longer controlled by the Party, but, as Čuroš says, by judicial oligarchs – court presidents and other influential people connected also into informal referee networks. This is what Čuroš and other younger researchers are finding about Slovakia, a country where in the spring of 2020, as part of the Vihar (Búrka) operation, thirteen influential judges were arrested, including the vice-president of the Supreme Court – all on suspicion of corruption, bribery, and abuse of position.
DEMOKRACIJA: It is known that the salaries of judges have not changed for almost a decade and lag far behind salaries in the public administration. Do you think that the reasons for this lie in the general lack of confidence in the judiciary and its effectiveness, or in the inability of the top of the judicial branch to establish a constructive dialogue with society? Could it even be an attempt at an internal reign of terror, establishing the dependence of judges in relation to the top courts?
Zobec: The wages are really bad. Here, I am mainly referring to the salaries of first-instance judges. The novice judge has a lower salary than he had previously when he worked as a consultant in the Supreme Court. This is unacceptable because the responsibility is greater and the work is also more demanding, especially when it comes to District, High, and Supreme Criminal Judges. This work is really difficult. Therefore, I am not surprised by the low interest in the positions of criminal judges in the district courts. As judges, we are noticeably lagging behind salaries in the public administration, which, in my opinion, is unconstitutional. The Constitutional Court already ruled on this some 13 years ago, at that time regarding the comparison of judges’ salaries with the salaries of members of parliament. Therefore, I can fully confirm, it is true, judges’ salaries are too low.
DEMOKRACIJA: Some time ago, we read about an investigating judge who was supposed to be wading through a 30,000-page file in a case related to a billion-dollar investment. It is a case of TEŠ 6. The investigation therefore took an unreasonable amount of time. Is this way of working and organising normal? I have not seen that the judiciary has proposed any legal changes that would enable reasonable and efficient handling of such cases.
Zobec: It is difficult for me to judge this case, even in terms of the way it works. As an observer, I find it unacceptable that a single judge is dealing with such a complex case. Economic crime is usually the most sophisticated and difficult form of crime. Here, the judicial administration should ensure that the judge is provided with adequate professional support, that is, a sufficient number of advisers who would go through all these thousands of pages together with him, make summaries of the most essential and who would prepare manageable material.
DEMOKRACIJA: Are there any legislative changes on the horizon?
Zobec: I do not know about them. Maybe there are, but I missed them.
DEMOKRACIJA: It has been quite some time since Verica Trstenjak left the Judicial Council, but it seems that no one took her action seriously. There is no in-depth public discussion about the work, organisation, vision of the judiciary, as if the life of the judiciary is completely immune to social events. Is it rigidity or intellectual casualness? Are judges afraid of reprisals from the system in the event of public appearances in their own name?
Zobec: There are in-depth public debates about the functioning of the judicial system and the organisation of the judiciary. A lot has already been written about these topics, many international conferences, symposia, and colloquiums were dedicated to them, especially about post-socialist courts. Unfortunately, this literature is in a foreign language. Local authors also write in a foreign language. It is an excellent monograph by the internationally well-established and respected professors Matej Avbelj and Jernej Letnar Černič, which was published by the prestigious Hart publishing house. The authors also thoroughly analyse the situation in the Slovenian judiciary, a brilliant empirical study that reveals every detail. But it was completely unnoticed here, maybe even deliberately ignored. At international conferences, there is a lot of talk about post-socialist courts, including Slovenia. Of course, Poland and Hungary lead the way, as does Slovakia, but the problems faced by the post-communist judiciary are multifaceted and different from each other. I myself have written a lot about this and therefore found myself in front of the ethics committee several times. Therefore, it is safer to write in a foreign language and publish papers in foreign literature. That is what I do myself. In the month of November, I am invited to a conference in Oslo, precisely on the topic of Judges under stress in post-socialist courts. For a long time, I have asked for the approval of a business trip to this conference, but the president of the court has not yet answered me – although they are politely asking me from Oslo to let them know when I will arrive. In our country, when we write critically about the judiciary and analyse the functioning of the courts, especially when it concerns the management of the courts, we have to resort to a foreign language. So, I also prefer to write in English, even though it is not my mother tongue, but I am significantly freer in a foreign language than in my mother tongue. As you can already see in this interview, I do not feel free in Slovenian, I cannot say what I will or could say in a foreign language.
DEMOKRACIJA: Jurij Toplak is also abroad.
Zobec: Yes, he currently teaches at Fordham University School of Law in New York. All those who have a more critical view of the functioning of the Slovenian rule of law, especially the judiciary, who are not mediocre, will find it difficult to articulate their thoughts in Slovenia, because sooner or later they will encounter problems. Therefore, they resort to a foreign language in which they enjoy freedom. In the Slovenian language, this freedom is limited. It is, of course, certainly a bitter realisation that for more than thirty years since independence, judges have had freedom of expression only in a foreign language and that we can safely speak, write, and discuss publicly only abroad, in a foreign environment, in a foreign language. For a legal position that is not liked by the top political power in the judiciary, even if this position is based on a convincing argument, supported by the jurisprudence of the Supreme Court and on indisputable, true facts, the ethics commission will declare it unethical, and the one who expressed and justified it will be accused, as they accused me in these days, of unethical behaviour. If nothing else, that he acted, you will not believe, with bad, evil intentions. This even goes beyond the infamous Article 133 of the Criminal Code of the SFRY, where in addition to evil intent, the defendant had to be proven untruthful of the facts that the defendant disseminated. Today, 33 years after the fall of the Berlin Wall, the ethics commission declares the truth unethical. Therefore, I think that it is not so much a matter of rigidity and casualness, as you said earlier, but of a retreat into the inner, private sphere, of internal immigration, something like what Vaclav Havel wrote in a letter he addressed to Gustav Husak in 1975, then General Secretary of the Czechoslovak Communist Party. Among other things, in this letter, which is freely available online today and I advise readers to read it and compare it with the state of democracy in Slovenia, he also wrote the following postulates of the communist rulers: Avoid politics as much as possible. Leave it to us. Just do what we tell you, do not think too deeply and do not poke your nose into things that do not concern you. Do your work in silence, take care of yourself and everything will be fine.
DEMOKRACIJA: Personnel procedures at the Judicial Council regarding the appointment and promotion of judges take more than a year. A layman’s comment would be: with such a way of operating, any company would fail. Do you not think that rigidity and slowness are a legacy that the judiciary should get rid of as soon as possible?
Zobec: Rigidity and slowness are not desirable. However, when appointing judges, we cannot simply compare the judiciary with commercial companies. The procedures for appointing judges are really long and complicated. But in principle, there is nothing wrong with long, complicated procedures, checks to see if a competent, qualified person will be appointed to the position of judge, who will perform the judicial duties successfully. The procedures for appointing US Supreme Court Justices as well as federal judges are even more complicated and lengthy, and even the FBI is investigating their private lives. The more responsible the position, the more careful, precise, and rigorous the candidate screening procedures must be. These appointment procedures are often further delayed by appeals from unselected candidates, all the way to the Constitutional Court. And it takes a year or more before the Constitutional Court decides on it. The latest appointment of a Chief Justice to the Civil Division of the Supreme Court has been delayed considerably. It took about two years also because the unsuccessful candidate filed a constitutional complaint. In the end, it failed with her, but the appointment process stalled. If not, and if the appeal succeeded, all decisions involving the judge whose appointment was challenged would be null and void.
DEMOKRACIJA: If the FBI checks judges in America, who checks them here?
Zobec: In our country, judges are vetted by the personnel council based on the opinions of judges who decided on appeals and legal remedies against decisions issued by the candidate – or based on the opinion of mentors, when it comes to the first appointments of judges from the ranks of consultants. They know the candidates’ work best. The president of the court also has an important say where he is to be appointed. I think that this solution is not the best, because it excessively strengthens the position of the president of the court, in addition to all other powers. In the end, the Judicial Council makes its decision after interviewing all the candidates, which should be explained.
DEMOKRACIJA: But we do not have the kind of verification that the FBI does?
Zobec: Look, a judge who is compromised in any way, but hides his dark past and it remains hidden, is a potential victim of blackmail, which can also lead to the bending of the law. In positions of responsibility such as those of judges, it is also necessary to have clean, untainted people who cannot be blackmailed.
DEMOKRACIJA: What possible measures do you see to increase trust in institutions and especially in the judiciary? Do you think that consistent provision of the trial to the public, also with the help of video transmissions, would contribute to greater trust in the judiciary?
Zobec: Definitely. Regarding the latter, I am an ardent supporter of the transparency and publicity of the work of the courts, and I think that the Supreme Court should also hold hearings several times and not make decisions only in closed sessions. I also miss hearings at the Constitutional Court. The hearings ensure that the parties have their day in court, to cross the swords of argument in front of judges in live debate. The hearings are a direct expression of what is essential in law, which is the clash of opposing arguments. At the same time, this ensures the public and control over the work of judges. In this way, they are always under the spotlight. And if you are observed, you behave differently than “on camera”. If the critical public is watching you, you cannot afford something that you would be ashamed of in front of the public. Let the public sit in the inspector’s box of Bentham’s Panopticon. That is why, for example, in Brazil, even the sessions of the Supreme Court are broadcast live through a special television channel. I think that this is an effective means of controlling the legality and, in particular, the correctness of the work of the court, which ultimately benefits the court’s reputation – because then all sorts of doubts about the correctness of what is happening behind closed doors disappear. The transparency and publicity of the work helps to build trust. It would be good if the court hearings, which take place in small rooms, were transmitted by video. I also support the publication of all court decisions, including those of the first instance. To conclude: I support all measures aimed at greater publicity and transparency of the work of the courts. Transparency builds trust.
DEMOKRACIJA: Anything else you would like to add?
Zobec: When you asked me at the beginning whether the judiciary could contribute more to social coexistence and cohesion, I do not think I answered that question. The answer is yes. It could always do more. Jurisprudence, judicial law contributes to the peaceful coexistence of people with its coherence, measured and predictable development and with an interpretation that is reasonable and based on established, legally accepted interpretation methods. It is wrong, however, if law turns into quantum mechanics and, so to speak, in the same legal position, in the same legal situation, in a life case similar to power, it is decided once this way, once the other. Although some also advocate this thesis, for example Zagreb professor Tamara Ćapeta, when she compares the interpretation of the law and thus the outcome of a legal dispute before the court with Schrödinger’s cat. She says that the result of the interpretation of the law, that is, how the court will decide in a dispute, is always an unknown. Just as in quantum physics, the position of an elementary particle or electron, which can be in two different places at the same time, is unknown – until it is observed. As soon as it is noticed, it collapses into a single position. And with the announcement of the verdict, the different positions of the members of the judicial panel collapse into the majority position. However, if jurisprudence at the general level behaves like an unobserved elementary particle in quantum mechanics, then this has a destructive effect on social coexistence. Of course, this does not mean the immutability of judicial law, which is a living organism, just as law in general changes because it has to adapt to changing real life. However, this adaptation must be evolutionary, predictable, harmonious, and coordinated with the changes and development of human society. This is one of the principles of the rule of law.
DEMOKRACIJA: So, we do not have a legal practice?
Zobec: Legal practice is, of course it is. But it is something like Dworkin’s chain novel, which is written consecutively by several authors. As judges, we continue the work of our ancestors, or rather, we upgrade our work of yesterday with new knowledge of legal science, comparative judicial practice, and with new challenges brought by life itself. An individual case, which is like an atom in the molecular chain of jurisprudence, is unique and unrepeatable. Of course, similar cases should be treated similarly. Where they differ, even if only in nuance, our response may also vary in nuance. We must always keep the past in mind and at the same time look ahead to see what effect the court decision will have on similar cases in future situations. That is why it is said that the Supreme Court, being the court of precedent, has the face of Janus, looking back and forward at the same time.
Jan Zobec worked as a judge at the Basic Court in Koper, the High Court in Koper, and the High Court in Ljubljana. In May 2003, he became a judge of the Supreme Court of the Republic of Slovenia. Throughout his 41-year career as a judge, he worked in the litigation and civil departments, occasionally also in the commercial chambers. At the end of March 2008, he became a constitutional judge and, after the end of his nine-year term, continued to serve as the supreme judge. He actively participated in many domestic and foreign scientific conferences, seminars, and meetings with written contributions. As a lecturer, he participated several times at judges’ schools, occasionally lectures at the New University. He is the author of numerous scientific and professional articles, co-author of monographs and commentaries. He is also a member of the European Judicial Network, a small group of judges of the European Constitutional Courts, ECHR, and SEU, organised within the American association of lawyers, The Federalist Society.