By: Sara Bertoncelj / Nova24tv
It takes decades to establish a full-blooded constitutional culture after decades of living in a totalitarian regime where the law was not an argument but the real power to be governed. The cultural substrate on which we can build the rule of law and on which the formal framework it provides can work successfully has been built for generations. According to Supreme Judge Jan Zobec, there are several key problems in the Slovenian judiciary, but he believes that the problem stems mainly from the first half of the 1990s or from the transition in the narrower sense of the word. “Slovenia did not act like Germany, which in almost two years until 1992 replaced more than 90 percent of all judges in the eastern part of the country. It had, of course, West Germany, from where it drew judges. A similar thing happened to professors at law schools. As we are now finding out, some cadres did not come from the West, but even from the more democratically deficient republics of the former Yugoslavia,” Zobec explained to Siol, who also spoke about the bar exams held in BiH and the fact that Branko Masleša does not have the postulate ability to appear before the Supreme Court.
“Doubts continue to linger, as Branko Masleša did not show one paper, namely a certificate of passing the bar exam under the Bar Examination Act of the Republic of Slovenia. He should have submitted this paper, but he did not,” repeated Supreme Judge Jan Zobec in an interview with Siol. The judge believes that Branko Masleša does not have the postulate ability to appear before the Supreme Court. The door to the Supreme Court is even closed to Masleša as a client. “He who would not be able to file a legal appeal in the Supreme Court in his own name is at the same time the Supreme Judge who decides on these legal remedies,” explained Zobec, who referred to at least two decisions in which the Supreme Court stated that the bar exam passed in BiH or in the former SFRY is not valid in Slovenia. Let us remind you that there is no article in Slovenian legislation that would equate bar exams from our former common state with Slovenian PDI.
When asked about the scale of states according to the state of the rule of law, Zobec talked about an event from the time when he was still a constitutional judge. The then president of the Constitutional Court came from Strasbourg, from the opening of the judicial year, and was asked what they said about Slovenia. He replied that everyone praised Slovenia immensely, thanks to the Commission for the Prevention of Corruption and the Integrity and Prevention of Corruption Act. “But we all know how this commission was abused. This is a good example of the gap between the formal framework and the actual action in practice,” Zobec explained, emphasising that only action in practice counts, which is of course very difficult to measure. “That is why I am a bit reluctant when it comes to scales like this. According to the formal framework, Slovenia could be very high, certainly among the top 15, but when it comes to implementing the rule of law in practice, we have serious problems in many places,” he added.
The average citizen, if he does not run into some higher interests, can also count on quite solid legal protection in our country
In Slovenia, perhaps like Russia, in less important, insensitive cases, where no higher interests are involved, the courts are relatively fine. In the civil cases, in which Zobec also judges, the Supreme Court is doing its best and doing its job well. Lower courts are sometimes worse, sometimes better – so average. “But when it comes to important, sensitive, exposed issues, decisions also happen that raise your eyebrows,” Zobec pointed out, when anomalies most often occur. Such was, for example, the last decision in the Balkan Warrior case, and of course the Patria case. Or the Novič matter. “Even in the civilian department, we had one such case when two TV Slovenia journalists sued the then leader of the opposition, who is today the Prime Minister. In all these cases, there were interesting, somewhat unusual decisions, including serious human rights violations, as in the case of Patria and Novič, in the case we discussed in the civil department, even two diametrically opposed decisions,” said Zobec. Here, of course, is also the Kangler case, in which the lower instances made rather unusual decisions. Then the decision of the Supreme Court regarding the wearing of masks, and the case of one of the sons of the mayor of Ljubljana, where it was illegal confiscation of a case from a judge after the appeal of the son of the mayor of Ljubljana was rejected, and then the case was assigned to other judges, who then granted the mayor’s son’s legal remedy – we have written several times about Judge Ana Testen, who was reassigned to Kamnik by the President of the District Court Marjan Pogačnik.
“Even a long time ago, it was proposed to start proceedings for massacres against a prominent, influential functionary of the former Yugoslavia, but somehow it all ended very strangely before the investigation began, as the court did not allow it, saying there was no reasonable suspicion, although there was evidence to support such a suspicion. All this points to some resemblance to Popov’s findings for Russia. An ordinary, average citizen, if he does not run into some higher interests, can also count on a solid legal protection in our country, but the question is how long he will have to wait for this protection,” Zobec warned.
The public has every right and a civic duty to look critically at judges
According to Zobec, it is also quite problematic that the principle of public trial, which is constitutionally guaranteed and one of the main elements of a fair procedure, has not been implemented at the time of digitisation. One of the problems of the Slovenian judiciary is the lack of publicity and transparency. Especially in these high-profile, sensitive cases, hearings should take place in the largest courtrooms and be broadcast online for public interest. The judiciary should also be open to the public, and according to Zobec, the judiciary should be open to information about judges, their education, professional achievements, publishing activities, and, ultimately, the number of citations of their professional publications.
There has been great damage to the reputation of the judge, the reputation of the Supreme Court and the judiciary as a whole
Doubts about Masleša’s qualifications are still lingering, as he did not show a single paper even after two months, namely a certificate of passing the bar exam according to the Bar Examination Act of the Republic of Slovenia. He should have submitted this paper, but he did not. The certificate of the bar exam in Bosnia and Herzegovina is important for the performance of the judicial service and for appearing before the courts in Bosnia and Herzegovina. In Slovenia, however, as the Supreme Court has clearly stated in two jurisdictions, it is necessary to pass the bar exam in accordance with the regulations in force in the Republic of Slovenia at the time, namely the Bar Exam Act, later the Internship and Vocational Training Act from 1980, and today the State Law Examination Act. Without this qualification, a candidate cannot be elected a judge. And the Supreme Court has made it clear that with the state bar exam, which is a condition for election to the judicial office, only bar exams passed under republican regulations are equated. According to Zobec, why the court decided so is completely logical. First, neither the Bar Examination Act, nor the 1980 Act, nor the State Bar Examination Act equate the Bar Examination passed in one of the former republics with the Bar Examination under Slovenian law. “So, the Supreme Court had all the legal basis for its decision. If it were interpreted differently, it would “break through” this text,” the Supreme Judge emphasised in the light of this explanation.
Branko Masleša does not have the postulate ability to appear before the Supreme Court
In the above-mentioned jurisdictions, the Supreme Court clearly stated why a bar exam, or a state bar exam is required to access the Supreme Court. Because the Supreme Court must have an equal, professionally competent interlocutor, and it only has one if he has a bar exam passed in accordance with Slovenian law, proof that he is well acquainted with the structure and functioning of the Slovenian legal system. “I hope that the whole affair, for which I think he is responsible, will be refuted by arguments, not threats. He cooked it himself, so of course he bears all the responsibility for such a decline in the reputation of the judiciary,” said Zobec regarding Masleša’s affair.
The law is not where the power is. The law is where the argument is
Zobec also recalled Masleša’s appearance on commercial television, in which the judge described the legal position that his Bosnian bar exam was not valid in Slovenia as the peak of gossip and, after encouraging the journalist, he even allowed lawsuits against journalists and others who think differently. According to Zobec, such a response is shown by the authoritarian conception of law, which got stuck in the first of Radbruch’s Five Minutes of the Philosophy of Law, namely in the minute that says that law is where the power is. “I regret that he has introduced a message into the Slovenian public space that is diametrically opposed to the democratic and, above all, with a discursive conception of law. No, the law is not where the power is. The law is where the argument is. Therefore, one does not respond to the argued legal position with disqualifications, saying that it is gossip, and with the possibility of filing lawsuits, but with arguments, legal arguments. Unfortunately, the man did not mention these, only disqualifications and semi-hidden threats,” Judge Zobec explained.
Neither the Judicial Service Act nor the Judicial Council Act provides for the situation in which we find ourselves and the way to resolve it. Certainly, the President of the Supreme Court, Damijan Florjančič, could have shown more determination and called on Masleša to submit the documents immediately. Failure by the respondent to comply with this could be a disciplinary violation, namely a violation of the reputation of the judiciary and trust in it. Therefore, in this way, the President might be able to get the matter clarified in less than two months. The problem with the Slovenian regulation is that it does not regulate such a situation, not even by analogy. This gap is difficult to solve because, on the one hand, we have the problem of a controversially appointed judge, and, on the other hand, the problem of the immobility of a judge and his independence. There are therefore two conflicting constitutional values, so there should be a special procedure to provide for the situation we have now and a procedure to resolve it – that is, a procedure to determine whether a particular judge has been appointed illegally and whether this results in a violation of the right to a trial before a court established by law. This procedure would use the test recently developed by the ECHR in the Ástráðsson case against Iceland.
Let’s hope that Šketa did not go to Russia to gain knowledge and experience on how to approach their authoritarian ideal
In an interview with Siol, Zobec also touched on Attorney General Drago Šketa, who signed a co-operation agreement with Russian Prosecutor Igor Krasnov, known as a major human rights violator, to celebrate the 300th anniversary of the Russian prosecutor’s office. Zobec thinks this is a severe slip. “This time, to visit an authoritarian country like Russia, a notorious human rights violator, a country that does not respect the judgments of the European Court of Human Rights, where even their Constitutional Court has the power to examine every judgment of the European Court of Human Rights whether is in accordance to their constitution, certainly means a big, completely unnecessary slip,” he said, adding that this is especially true given that authoritarian legalism is honed to perfection there. “Just look at the proportion of convictions in cases prosecuted by their prosecution. The success rate of prosecutors is 99.75%. That is inconceivable. This is even more than in the former Soviet Union, which was a police state,” Zobec said, stringing together data and convincingly arguing his opinion.
What key changes would Zobec introduce in the Slovenian judiciary?
In an interview, Supreme and former Constitutional Judge Jan Zobec explained what key changes or solutions he would introduce in the Slovenian judiciary. Among other things, he pointed out that it would be very useful to reintroduce psychological tests, such as those introduced by Professor Boštjan M. Zupančič at the Faculty of Law for some time, which were used to check the legal intelligence of candidates for legal studies. Zobec is convinced that this test would make an important selection.