Expert in constitutional law, Avbelj, Ph.D.: The constitutional charge, announced by the opposition, is constitutional and legal nonsense

Matej Avbelj, Ph.D. (Photo: RTV)

“From this case-law of the Constitutional Court of the Republic of Slovenia, it follows that a letter like this one, sent by the Prime Minister as the highest representative of the executive branch of power, responsible for the Prosecutor’s office, to the office of the State Prosecutor General, which is directly responsible for leading the Prosecutor’s office, is not in conflict with the Constitution, but is part of the exact system of brakes and balances, which is indicated by the Constitution of the Republic of Slovenia,” an expert in constitutional law and professor at the Faculty of Government and European Studies, Matej Avbelj, Ph.D.,

After the State Prosecutor’s Council, headed by the Senior State Prosecutor Tamara Gregorčič, condemned a letter by the Prime Minister Janez Janša, which was sent to the State Prosecutor General Drago Šketa on June 19th, in which Janša accused the prosecution of being passive in prosecuting the death threats and provocative attacks on the police officers at the protests, Avbelj, as an expert, emphasized that the prosecution is part of the executive branch of power. “The principle of separation of powers alone does not serve the intent of preserving power, but rather, it strives to protect the rights of individuals. It serves to prevent the arbitrariness of the authorities, and to ensure that the authorities control each other.”

Considering that the President of the SD party, Tanja Fajon, publicly stated that Janša’s actions were allegedly inadmissible, as he exerted inadmissible pressure, which is why she believes he should be charged, the host of the TV show, Rosvita Pesek, asked Avbelj what he thought about the opposition’s opinion on the matter. “Do you think that the opposition’s words are baseless?” Avbelj replied: “Not only are they baseless. This is complete nonsense, constitutional and legal nonsense. I am surprised by the fact that very important political representatives in Slovenia so freely use such important arguments.”

Constitutionally and legally, Pirnat’s actions are unconvincing, if not even wrong
Among other things, Avbelj also responded to the opinion of Rajko Pirnat, Ph.D., a professor of law, who claimed just a few days ago, that the Prime Minister’s letter was worrying, and even a direct interference in the division of power. “Regarding the actions of my colleague Pirnat, I can at least say that constitutionally and legally, it is unconvincing, if not wrong. The State Prosecutor’s office, a specific public Prosecutor, has the autonomy of the function – autonomy in the sense that no one can dictate how the Prosecutor will conduct a specific procedure. However, if the Prime Minister, who is the head of the executive branch of power, describes his vision regarding a certain general matter which is constitutionally and legally sensitive in this country, to the Office of the State Prosecutor General, this is not an interference in the division of power. This is not unconstitutional conduct, nor is it creating any danger. It is basically an invitation for institutional dialogue and creation of appropriate standards, both legal and constitutional,” Avbelj believes.

Given that the reason for Janša’s letter was the inaction regarding the death threats, Avbelj pointed out that in this particular case, it is certainly a matter of inciting hatred towards a certain politician, towards a certain political option, and towards all those who belong to this political definition. “Such incitement of hatred is prohibited under Article 297 of the Criminal Code of the Republic of Slovenia. Such a crime is committed if it also endangers public law and order, and the Supreme Court, in a judgement, which was welcomed by the office of the State Prosecutor General some time ago, mitigated this condition of endangering public law and order – they decided that it is not necessary that public order and peace have been threatened concretely, but even abstractly, potentially. So, in this particular case, there are certainly quite a few things which show that the signs of a crime happening, are being met.”

In countries, similar to ours, the relevant authorities respond quickly
Avbelj explained that the course of action in other countries is completely different than it is in our country. “If someone were to call for the assassination of Chancellor Angela Merkel in Germany, would the police and the prosecution respond?” the host of the show asked Avbelj. In response, Avbelj pointed out that the viewers can type the following to Google: Kill Merkel, kill Cameron, and they will see what procedures are quickly being initiated in these countries and what the punishment is for such individuals. “When it comes to public threats to public authorities, which might mean that the constitutional order may be jeopardized, in countries, similar to ours, in those countries that we want to follow the example of, the relevant authorities respond very quickly, and sanction such behaviour, because it is socially very dangerous.”

“When it comes to the issue of freedom of speech, this freedom is broadest when it is used to address and criticize those in power,” Avbelj pointed out, adding that he himself is an advocate of high, broad freedom of speech; however, this ends when someone encroaches on human dignity or calls for the death of someone. “That is where freedom of speech ends. If you want, this is a classic example of hate speech.”

Nina Žoher