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sreda, 19 januarja, 2022

Was Judge Branko Masleša granted a “bar exam” on the basis of the unconstitutional Military Courts Act?

By: Sara Kovač / Nova24tv

Regarding Branko Masleša’s diploma, an important question also arises as to how he came to the state legal examination (PDI), which is one of the conditions for performing the judicial function. Judge Masleša was granted PDI under a special milder regulation from 1980 on the basis of the Military Courts Act, which is prohibited by the Constitution. Therefore, according to the latest case law of the ECHR in the case of Xero Flor v. Poland, there may have been a violation of the right to a lawful judge under Article 6 of the European convention on Human rights in all cases in which he has tried.

According to the publicly available biography of Judge Branko Masleša, he graduated from the Faculty of Law of the University of Sarajevo in 1975. After graduating and serving his military service, until 1980 he worked as a deputy public prosecutor at the Municipal Public Prosecutor’s Office II. in Sarajevo. On April 1st, 1980, he was elected a judge in the Criminal Division of the Basic Court in Koper. Until his election as a senior judge, he was the head of the criminal department at the Basic Court in Koper. On October 18th, 1984, he was elected a judge of the High Court in Koper, and on October 18th, 1994, he was elected to a permanent judicial position as a senior judge of the same court.

If he was elected a judge in Slovenia on April 1st, 1980, he was subject to the transitional provisions of the Traineeships, Professional Examinations and Professional Development of Public Administration and Judicial Training Act (Official Gazette of the SRS, No. 8/1980 et seq. (hereinafter ZPSII), which entered into force on April 15th, 1980. Thus, the second paragraph of Article 50 of the ZPSII stipulated that “the judicial examination under this Act also equates the judicial and legal examination, the examination for a lower legal officer, passed until December 29th, 1955 before the republican administrative body responsible for justice or the public prosecutor’s office of the People’s Republic of Slovenia and other examinations which, according to the existing regulations, have been equated with the judicial or bar examination and their existence is recognised by a decision of the republican administrative body responsible for justice.” The third paragraph of the ZPSII stipulated that “an examination passed by legal officers and military officers of the Yugoslav People’s Army as law graduates is equivalent to a bar examination if the programme covered the legal areas referred to in Article 15 of this Act.”

Article 15 of the ZPSII stipulated that a trainee who trains for the duties and tasks of a judge, public prosecutor, public attorney, lawyer, and misdemeanour judge shall perform a special part of the professional examination (hereinafter: the bar examination) in the following legal fields:

– self-governing organisation of associated labour, socio-economic relations of employees in associated labour and proceedings before self-governing courts;

– property-legal relations, law of obligations and civil procedural law;

– criminal-substantive and procedural law, the law of economic offenses and misdemeanours.

The oral part of the examination is taken from all three legal areas from the previous paragraph. The written part of the examination is a practical task from one of the legal fields from the previous paragraph, which is chosen by the candidate.

This means that there must either be a decision of the republican administrative body responsible for justice, which “validates” the civilian exam, which was equivalent to the PDI. Which can be checked with the competent authorities. According to Nova24TV, neither the court in Koper nor the Judicial Council have this.

The constitution prohibits military courts

In accordance with the regulations in force at the time, Judge Masleša came to the PDI without “validation” only with a law degree and a JNA military exam based on the first paragraph of Article 31 of the Military Courts Act (Official Gazette of the SFRY 4/77 et seq.), according to which a military service officer who has a law degree and has passed the examination for a major in the legal service or the bar examination may have been appointed a judge of the military court of first instance. Due to the federal regulation of military courts, only the presidency of the SFRY in accordance with the Military Courts Act, could be competent to assess whether the examination programme covers the above areas of law, and not the republican bodies.

However, the first paragraph of Article 4 of the UZITUL stipulates that until the relevant regulations of the Republic of Slovenia are issued in the Republic of Slovenia, those federal regulations that were in force in the Republic of Slovenia upon the enforcement of this Act, insofar as they do not contradict the legal order of the Republic of Slovenia and insofar as it is not otherwise provided by this Act, apply mutatis mutandis as republican regulations. Since the Constitution in the second paragraph of Article 126 prohibits the establishment of military courts in peacetime, it also indirectly prohibits the finding that military judges are subject to different, more lenient conditions for the recognition of PDI by the SFRY presidency. Therefore, as there is no competent body in the Republic of Slovenia that could confirm whether the programme contained mandatory content, the transitional provision recognising military PDI has no legal effect in Slovenia and is not enforceable.

According to the lawyers, the above circumstances indicate that the procedure for appointing Judge Masleša violated the right to a lawful judge under Article 6 of the ECHR, which leads to the annulment of all judgments in which Judge Masleša participated, as this is an intervention that affects the essence of this right. [1] The term “court” from Article 6 of the ECHR is understood to mean that judges of this court are selected on the basis of an assessment of their individual achievements (“merits”), which requires objective criteria regarding acquired professional and functional competencies, knowledge, moral integrity and professional autonomy of the candidate. In this regard, the ECHR mentions the independent state of mind of the candidate, so that among the several candidates, the one who best meets the objective criteria known in advance is chosen. [2] According to the ECHR, the procedure for appointing judges must be rigorous and the ECHR verifies this or directs national courts to review these decisions according to a strict method. [3] Boštjan Zalar and Mohor Fajdiga wrote in depth about this in the article On the legality and (independence) of the establishment of courts in Slovenia in the Saturday supplement of Delo on July 31st, 2021, to whose quotations I refer. However, the case law of the ECHR is based on the recent judgment of the ECHR in the case CASE OF XERO FLOR w POLSCE sp. z o.o. v. POLAND of May 7th, 2021, in which the court found that the right to a lawful court had been violated because the case involved Polish supreme judges appointed inconsistent with the law.

[1]Ibid. 246, 255, 295; Xero Flor w Polsce sp. z.o.o. v. Poland, App. no. 4907/18, 7. 5. 2021, par. 276, 281, 290.

[2]Guđmundur Andri Ástrádsson v Iceland, App. no. 26374/18, 1. 12. 2020, par. 220, 230, 234; Xero Flor w Polsce sp. z.o.o. v. Poland, App. no. 4907/18, 7. 5. 2021, odst. 244; Xhoxhaj v. Albania, App. no. 15227/19, 9. 2. 2021, odst. 291; Reczkowicz v. Poland, App. no. 43447/19, 22. 7. 2021, par. 261.

[3]Guđmundur Andri Ástráđsson v Iceland, App. no. 26374/18, 1. 12. 2020, par. 222, 226, 243; Xero Flor w Polsce sp. z.o.o. v. Poland, App. no. 4907/18, 7. 5. 2021, odst. 245; Reczkowicz v. Poland, App. no. 43447/19, 22. 7. 2021, par. 218.

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