One of the authors of the Slovenian Constitution and former President of the Constitutional Court: Prime Minister Janez Janša did not violate any principles of the Slovenian Constitution

Dr. Peter Jambrek. (Foto: STA)

“Not only does this letter not contradict the principle of division of power, as regulated by the Constitution of the Republic of Slovenia; it directly strengthens the division of power. Namely, this principle does not mean that individual branches of the government are viewed through the barrels of rifles, or from the trenches opposite each other, in the front line of some war. The division of power depends on the quality of the control relations of the restriction, as well as on cooperation, when it comes to the jointly balanced and effective achieving of goals. So I have now, from memory, quoted a comment on this principle, by professor Igor Kaučič, who is an indisputable authority in the field of constitutional law,” one of the authors of the Slovenian Constitution, Peter Jambrek, Ph.D., commented on the Social Democrats’ announcement that they will file a constitutional charge against the Prime Minister Janez Janša, due to the letter that he sent to the Prosecutor-General, Drago Šketa. And in an interview, Damijan Terpin, an attorney, told us that the phrase “Death to Janšaism,” is inadmissible in what it calls for, and therefore, a criminal offense.

We spoke to several legal experts about the letter that the Slovenian Prime Minister Janez Janša sent to the Prosecutor-General Drago Šketa. Namely, we wanted to know whether the Prime Minister’s letter to the Prosecutor-General is really problematic from the constitutional point of view and whether the possible constitutional charges related to it, are actually legitimate. They do not find the contents of the letter problematic, as the Prime Minister pointed out the problems in the Slovenian judiciary, which the Slovenian public has known about for a long time. The letter is a practical expression of the inhibitions and balances among the constitutional bodies. There is no insurmountable wall separating them, but there is cooperation, mutual control, and also criticism. “Regarding the letter, in which the Prime Minister warns a colleague from another state body about what is regulated by the constitution, or what about the fundamental rights to life and death is established in the Criminal Code in case someone is being threatened or threatened with death, I really cannot understand how such a letter could be seen as interference,” the former constitutional judge Peter Jambrek, Ph.D., told us.

All the people we spoke with assured us that the Prime Minister had not pressured the Prosecutor-General on how to decide in a particular case. Neither did he threaten the Prosecutor-General, in any way. He only drew his attention to the unequal prosecutorial treatment of certain disputable acts and to the different criteria being used when it comes to the assessment of the criminal offence of public incitement to hatred, violence, or intolerance (Article 297 of the Criminal Code-1). Criticizing the work of the prosecution and drawing attention to the policies of the prosecution is something the Prime Minister is allowed to do. It is precisely because of the principle of brakes and balances as one of the pillars of the rule of law, he not only has the “right” but also has a duty, or more accurately, the authority, to point out the errors, inconsistencies, and double standards in prosecuting certain crimes. Therefore, a letter, such as the one that was sent to the Prosecutor-General, is not a way of pressuring the particular public prosecutor to decide in a particular case. So, what that the acting president of the SD party, Tanja Fajon, has said about the constitutional charges, is completely wrong.

One of the authors of the Slovenian Constitution, Jambrek, is critical of his colleague Pirnat, who accused the Prime Minister Janez Janša of violating the Constitution
Professor Jambrek also does not understand the arguments which his colleague, Rajko Pirtnat, Ph.D., presented in one of the Slovenian media. According to Jambrek, Pirnat publicly claimed that Janez Janša had encroached on the constitutional principle of the division of power. Unfortunately, according to Jambrek, his long-time acquaintance in the legal field, missed the point, as the Prime Minister was highlighting the human rights and values, which, of course, is not interference. “I find it absurd, not just unprofessional, ignorant, but also absurd. According to the case law of the European Court of Human Rights, interference is a measure of the state, with which the state restricts a certain constitutional right or one of the rights from the European Convention on Human Rights in a concrete, legal, factual manner. So, the state limits the right. This does not mean that a certain state body has also violated this right. Much more is needed for a violation, and much more is needed for something to even be considered interference. Concrete action is needed, an act of legal nature, which actually limits the exercising of a right, someone else’s legal right,” the greatest authority in the field of legal theory told us.

Jambrek also wonders why a letter, in which the Prime Minister warned the public Prosecutor Šketa about his fundamental right to life, while a crowd threatens him with death and publicly incites hatred against him, should be considered controversial. “I do not understand how this could be understood as interference. This is absurd, and in this case, Rajko Pirnat has crossed the line of his professional credibility, which he has, and enjoys in the professional community. It may be that he did this because of some personal resentments from the past, because of the political relations in which he was involved,” Jambrek said about Pirnat’s unprofessional response.

The former President of the Assembly for the Republic also pointed out that Janša wrote the letter on his own accord, in the interest of his family, his wife and children, who are being threatened with death. A person who holds an extremely important function is being affected by personal attacks. “In this way, he is being blackmailed, disqualified, and pressured.”

Attorney Damijan Terpin

  1. How can a constitutional charge be initiated against the Prime Minister?
    A constitutional charge can be initiated by at least 10 deputies, and the National Assembly decides on it, with the needed majority (46 votes), which then also asks for the opinion of the President of the Republic. If the majority is reached, the Constitutional Court then decides on the charge, with the two-thirds majority. The Constitutional Court thus first decides on a proposed charge of the alleged violation of the Constitution or law by the Prime Minister. Even if such a violation is found, this does not automatically result in the dismissal of the accused from the function, but rather, this is the final question, which the Constitutional Court tackles separately. This decision must also be taken by a two-thirds majority. Of course, the decision of the deputies is political, and the decision of the Constitutional Court is constitutional and professional, as the attorney Andraž Teršek, Ph.D., says.

Since the beginning of the current government’s term, the opposition has been using such instruments, in addition to the interpellation, the letters that were sent to Brussels, the intimidating about the dictatorship in Slovenia through foreign newspapers, and so on. However, so far, it has not been able to articulate a single concrete, substantive critique of the actions of Janša’s government, which have continuously proven to be very good and effective, firstly, the actions which were related to the COVID-19 epidemic, and then, all the other actions, like the so-called corona packages with economic content.

These days, it was funny to listen to the former Speaker of the National Assembly, Milan Brglez, as he – pay attention, as a lawyer! – claimed that this government has no legitimacy, as if he does not know that the government is legitimized in the National Assembly, where it received more than just the necessary majority – 51 votes. Despite the transfers of certain MPs to the ranks of the opposition, the interpellation against Minister Počivalšek was rejected with the same number of votes, and all legislative proposals of the government were approved without a problem in the National Assembly. I am convinced that the proposal for a constitutional charge, if the SD party was to file it at all – which I am not so sure they would – would have been rejected with the same number of votes.

It is interesting, however, that the SD has not even announced yet, which articles of the law or the Constitution the Prime Minister allegedly violated, which should otherwise be the first thing to happen in a serious proposal for a constitutional charge. This alone tells us that the whole thing is nothing more than a political move, with the sole intention of gaining some media attention, and nothing more.

  1. In your opinion, has the Prime Minister exceeded his authority by writing a letter to the Prosecutor-General, Šketa?
    In my estimation, no. This is a letter in which the Prime Minister has pointed out the calls for his death, which we have been hearing for months now, and which the prosecutors would otherwise be expected to take action against, but they did not. The Prime Minister drew attention to this in a letter sent to the Prosecutor-General, with a harsh word, the severity of which, however, is proportional to the gravity of the criminal acts, to which the prosecution has so far not reacted adequately. The calls for death in the harsh political climate, where the police have to take extraordinary measures to even secure the national celebration, are not an expression of freedom of speech, but calls for violence, and committing the worst criminal acts, against life itself. The fact that the prosecution is not opposing this is extremely worrying.

There is a certain belief among some of the politicians and journalists in Slovenia that the work of prosecutors, and especially judges, should not even be discussed, and any concrete criticism is automatically viewed as an attack on their independence. Of course, independence is in place, but the other side of that independence that everyone loves to highlight,  is responsibility. Therefore, the call for responsibility cannot be considered an overstepping of powers, and if it is well-argued, there definitely should be a time and a place for it. The Prime Minister justified his actions by explaining that they are based on a perfectly reasonable concern about the unbridled calls for death, which should be of serious concern to every member of our society, and even more so, to the law enforcement.

  1. Why is it allowed to publicly chant “Death to Janšaism,” but not allowed to criticize the work of the prosecution?
    “Death to Janšaism” is a coinage that, in my opinion, is hate speech in itself, as it is directly derived from the phrase “Death to fascism,” which was justifiably used in World War II, as a slogan against the regime and ideology, which physically suppressed the Slovenian nation, and strived for its destruction. However, justifying the use of the phrase “Death to Janšaism,” means to define all those who politically identify with the SDS party and its president, Janez Janša, as mortal enemies, and legitimized a physical attack on them, as the physical attacks on fascists were once justified and legitimate, due to the aforementioned reasons. Fascism deserved armed rebellion and destruction due to its actions and aspirations, however, the SDS party and Janez Janša, are, within the framework of the Slovenian Constitutional system, a political party and its president, which also won the democratic elections, and therefore, calling for their death is, of course, an inadmissible and criminal offence.

I estimate that for as long as the opposition in Slovenia will continue to deal only with politicization, and not with the real problems of the Slovenian people, it will not gain credibility with the voters. Nor will it succeed in overthrowing the government with interpellations, constitutional charges, shows like Tarča, cycling, or similar manoeuvres, despite the almost unanimous media support, as no other political option in Slovenia’s history has ever had. It would be better to put up with this and carefully use the time until the next election to articulate concrete proposals for the good of the people, so that it can present itself credibly to the voters in the next elections, otherwise it is at risk of another flop at the next elections.

Allowing and calling for the death of an individual is reminiscent of the times after the Second World War and the post-war massacres
Legal experts have specifically warned us that it is completely unacceptable that the Prosecutor’s office in Ljubljana, led by Katarina Bregant, has publicly announced that the phrase “Death to Janšaism” is not problematic and the individuals who carry banners with such inscriptions or chant the phrase, will not be prosecuted. The legal experts we spoke to believe that a clear threat has been expressed by the mass of several thousand people, who, with banners and loud shouting, are calling for the death of not only the Prime Minister Janez Janša, but of all those who are members, sympathizers, or only occasional voters of the political party.

The experts we spoke to, compared the calling for the death of the supporters of Janez Janša’s politics, to the events that happened after the Second World War, and the post-war massacres. Back then, the crowd – just like now – demanded the death of their ideological opponents. This threat is systematic, as it has been repeated regularly, at least once a week, for more than two months now. It is not just an individual, one-off excess of an overstretched and emotionally uncontrollable individual, but rather, shouted by a mass of people, organized, well-thought-out, and finally, well-covered by the media, even by the public media outlet RTV. The banners that read “Death to Janšaism!” are even printed out, the legal experts pointed out.

Because of all of this, its danger and potential for expansion are incomparably greater than the solitary cry of some overstrained individual. If we add the individual outbreaks of violence to this, not just the jumping over the fence, which is what some protesters were doing, but also the disregarding of measures, implemented to contain the infection of a deadly infectious disease, and causing damage to the facades of some houses, even the American doctrine, which is very much in favour of the concept of free speech, would see a reason for legal action here.
After all, there is a clear and imminent danger, that the calls for death, said en masse, organized, repeated, and, in addition, supported by the media, will meet with a tangible response – first, in the charlatan actions, the victims of which are the owners of houses in the centre of Ljubljana, then in damaging the cars, and finally, in something unimaginably serious. This already happened on Slovenian soil, in the middle of the previous century.

Jambrek therefore warns that any normal person would consider anything that intimidates him, a serious threat. “Living in fear of the threats of primitives, bullies, worrying that someone will kill you, or kill a group of people to which you belong. This is something so unheard of that it is, in fact, most deeply contrary to the values of the Slovenian Constitution.”

In Slovenian society, there is the desire to perversely, rudely connect and equate the supporters of Janez Janša’s politics with Mussolini’s fascists
Former Constitutional judge Jambrek thus warned that the term Janšaism, with which part of Slovenian citizens threaten Janša and his supporters on a weekly basis, should not be overlooked. “Threats are being made to the person and to Janšaism. Let’s be honest and humane here, this is only a paraphrase, a metaphor, a parable, based on the well-known phrase Death to fascism, freedom to the people. Fascism and Janšaism supposedly somehow coincide, can be compared in the propaganda, the agitating threatening with death.”

With this, they want to awaken the historical memory of the real fascism that part of Slovenia experienced until the end of the Second World War. According to Jambrek, the meaning of the phrase Death to fascism is still in the consciousness of the Slovenian nation. The revolt against fascism also triggered a desire to kill, where the rebels stood up and faced the occupier. Part of the opposition, the media, and part of the civil society want to repeat this now – those who would like to trigger the idea that Janšaism is the same as fascism, in the minds of the nation, which is completely perverted.

“it makes no sense to ignore the fact that death to fascism, in the abstract idea, expands the meaning of killing, which can be described as fascism within fascism. If we now speak about Janšaism in a perverted way as well, as a phenomenon and a person surrounded by like-minded people who we want death for, and thus paraphrase that interwar period of fascism, this is the most rejected, rude and hostile act, worth of being persecuted,” professor Peter Jambrek, Ph.D., was critical of the phrase Death to Janšaism.

Luka Perš