Constitutional lawyer Toplak reveals that constitutional court judge Špelca Mežnar does not recognise violations of constitution in 91 percent of cases

Ima Slovenija trenutno najslabšo sestavo ustavnega sodišča? (Foto: STA)

Jurij Toplak is a full professor of constitutional law at the Faculty of Law, University of Maribor. He wrote an article titled “Ko nad sodnikom ni nikogar” (When nobody is above a judge) for the Saturday supplement of Delo or Delo.si. In its introduction, he writes that the Slovenian court is not divided into the right and left. “The division is much more complicated.” Below, we have published some paragraphs from his article. Among other things, he writes that the constitutional judge Špelca Mežnar has not recognised violations of the Slovenian constitution in as many as 91 percent of cases, that judge Knez shocked with his opinion on the high standards of the protection of human rights by the European Court of Human Rights, and that Marijan Pavčnik is a mere voting machine who did not elaborate his position in a single separate opinion.

In the article, Jurij Toplak lists studies which confirm that there are large differences amongst the judges. “Men judge differently from women. Married people judge differently from those who are single or divorced. Those with Catholic values judge differently from those with socialist ones. Slovenia does not write about this despite the fact that for half a century, judicial behaviour has been a well-researched topic all around the world.”

Violations of constitution have most often gone unrecognised by Špelca Mežnar
According to Toplak, it has become clear after one year that the constitutional judges are strongly divided. But not into the right and left as many hastily conclude. Like judges in Europe, they are divided into those that are more concerned with the state and the limitation of rights, and those who feel empathy towards the victims whose rights have been violated by the state. A majority of the cases have nothing to do with the right-left division. The appellants include a Roma man who has been fighting for his right to a home, a defendant whose judge denied him the hearing of a witness and a convict who does not consider the judgement to have been adequately explained. In the year after 1 April 2017, the internet search engine points to 25 decisions on constitutional complaints in which judges were not unanimous.

Jaklič provides arguments, Pavčnik is merely the voice of the majority and Knez is entirely without a sense of human justice 
The differences between constitutional court judges are obvious from afar, as has already been pointed out separately by Teršek and Krivic. Jaklič’s opinions would fill up a whole book and are a regular essential reading material for lawyers and students. They are informed, sharp and reveal matters concerning the workings of the court which have only been whispered about in the past. Korpič Horvat’s opinions show a concern for the welfare state and social justice, openness to different views and an excellent knowledge of tax, financial and labour law. Pavčnik agrees with the majority almost without exception and does not provide separate opinions. But look: the constitutional judge Knez has only two opinions, but they are all the more surprising. He sees the standards of the European Court for Human Rights, which are the European minimum, as “high limits”, and respecting these rights, which we are being “forced” into by the European court, is not the “best solution” according to him, for Slovenia is so “special”, “that it would be necessary to establish a dialogue with the European Court of Human Rights (ECHR)”.

With positions from constitutional court judges such as these, it becomes clear why the ECHR encounters more violations of conventions in the small Slovenia than in the 40 times larger countries of Germany and Great Britain.

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