“So far, over 700 mass killing sites have been discovered in Slovenia, with evidence that clearly proves that tens of thousands of people were killed – not during the war, but after the war. Currently, more than 670 mass killing sites that have already been discovered are on the official list of the competent commission, and the Slovenian judiciary and the prosecutor’s office have not prosecuted a single individual for the crimes that are not statute-barred, neither under international, nor Slovenian law,” Prime Minister Janez Janša pointed out. He also revealed that the former Social Accounting Service (Služba družbenega knjigovodstva) had filed over seven hundred criminal complaints due to the illegal privatization at the time, as the Slovenian state economy was stolen, but even so, the Slovenian prosecutor’s office and judiciary had not locked anyone up. “Even the one person who actually was locked up was pardoned by the President,” the Prime Minister added.
The highest representatives of the three branches of government met with the President of the Republic Borut Pahor, to discuss the principle of separation of powers. The President of the Supreme Court, Damijan Florjančič, pointed out certain cases of the inappropriate attitude of the executive branch towards the judicial branch of power, while the Prime Minister Janez Janša emphasized that reputation needs to be earned. On this occasion, Pahor also explained that the separation of powers presupposes cooperation between its branches, not isolation.
“Thank you very much, Mr. President, thank you for organizing this meeting,” Prime Minister Janez Janša said in his address. “I did not really understand what it is going to be about, except finding some formal answers to some dilemmas that have arisen, but now I can see from the list of invitees that primarily, the question of the judiciary or the judicial branch of government prevails here, there is not as many representatives of the executive power and even fewer representatives of the legislative branch of power. I understand what we are talking about now,” he said in the introduction.
Janez Janša further explained that, unlike those present, he could shed light on this problem from a different angle as well – thanks, in part, to some people sitting at the same table. I will start thirty-two years ago, he said. At that time, after a week of my hunger strike, the law on criminal procedure and the criminal codes of the SFRY and SRS were brought to my cell, to the solitary confinement of the military court on Metelkova. I read the introduction to one of these laws, I think it was the Criminal Code of the SRS, i.e. the Socialist Republic of Slovenia, that was not much different from the introduction to the Federal Criminal Code. This is what it said: “The judicial system is a tool of the avant-garde, that is, the Communist Party, to carry out its programme, and criminal law is a tool for destroying the class enemy.” The whole text was spread out across a few pages, but Janša summed it up with his own words. So, he continued, 32 years ago, we had a judicial system and criminal law that were formally defined as a tool to destroy the class enemy. Mr. Florjančič refers to this by saying that some judicial errors had occurred. “ I think the essence of the problem we are discussing today lies precisely in these two diametrically different definitions of a judicial error,” the Prime Minister explained.
Criminal law is a tool for destroying the class enemy
Forewords to both criminal codes were written by a distinguished professor of criminal law, who is still a professor emeritus at the Faculty of Law in Ljubljana, and who influenced the establishment of many important things, Janša said. “Interestingly, six months after I read his words, the then-Socialist Union appointed him President of the Council for the Protection of Human Rights. The man who wrote in the foreword to the Criminal Code that criminal law is a tool for destroying the class enemy,” Janša pointed out and added that this was not only written in the introduction but was actually happening in practice. “Hundreds of people were sentenced to death and executed. Due to this recipe, they were imprisoned, their lives, families, careers were destroyed, and they were sent into exile. Mr. Florjančič, these were not judicial errors – this was a system, designed for the destruction of people,” Janša said to Florjančič.
Continuing his address, the Prime Minister said that, thanks to everything that happened outside the cell on Metelkova, Slovenia came to hold the multi-party elections, adopted a new constitution, and even before that, gained its independence. “And everything that some of you quoted earlier, is actually written in the constitution.” Janša admitted that in those first years of our independence, the Slovenian Constitutional Court did a lot to dismantle this view of the role of criminal law and the judiciary in the one-party regime, both theoretically and de jure, and to correct the many injustices that were done to certain groups and concrete individuals – those who survived, of course. The Supreme Court also did a lot in those early years, in the 1990s, he said. “It declared the former secret political police a criminal organization and substantiated their decision very well, it annulled a number of political processes, not all of them – some lasted a long time, and it seemed that Slovenia was becoming a normal country, with a normal judiciary, with the de facto separation of powers, with the de facto Copenhagen criteria for joining the EU, and it seemed as if things will become normal again.”
“After that, mass killing sites were beginning to be discovered. So far, over 700 of them have been discovered in Slovenia, with evidence that clearly proves that tens of thousands of people were killed – not during the war, but after the war. Currently, I think more than 670 mass killing sites that have already been discovered are on the official list of the competent commission, and the Slovenian judiciary and the prosecutor’s office have not prosecuted a single individual for the crimes that are not statute-barred, neither under international, nor Slovenian law,” Janša pointed out. He also revealed that the former Social Accounting Service (Služba družbenega knjigovodstva) had filed over seven hundred criminal complaints due to the illegal privatization at the time, as the Slovenian state economy was stolen, but even so, the Slovenian prosecutor’s office and judiciary had not locked anyone up. “Even the one person who actually was locked up was pardoned by the President,” the Prime Minister added.
Somewhere around the middle of this so-called transition time, things turned in the opposite direction.
In 1994, a new law on the judicial service was adopted, which came into force at the suggestion of Jože Pučnik, Ph.D. – the so-called Pučnik’s amendment and the law still states that those who violated human rights in the previous regime while performing their judicial functions, cannot be appointed for a permanent term, Janša said, and explained in more detail: “I think that the Judicial Council only complied with this law in one case, and for all of the others, it wrote that it did not have information that the candidates proposed for a permanent term of office, violated this article of the law, even though the judgments or indictments that prove the contrary, were made public, books were written about them, documentaries were made, but the Judicial Council somehow knew nothing about it.”
“Trust in the judiciary has decreased dramatically. The key thing in assessing the trust we have in politicians is how the people vote, but in the judiciary, this is measured by other standards. However, we have seen a lot of research, including European, according to which, trust in the judiciary authorities in Slovenia is at one of the lowest rates in Europe, and the research was carried out after we joined the European Union.”
Instead of things getting better, they got drastically worse
When we were negotiating to join the European Union, the Prime Minister continued his address, we asked those who later became our partners, for help, and the German Supreme Judge Dukoff was assigned to Slovenia, who made some twenty to twenty-five recommendations on what Slovenia should do to ensure that the Slovenian judicial system will be at about the level of the European average, or what needs to be done to bring the Slovenian judicial system to that level. Mr. Zalar, who later became the minister of justice, described these recommendations as unnecessary preaching from someone sitting on a European pedestal, who does not understand the situation in Slovenia, Janša pointed out. If you were to read those recommendations today, you would clearly see that what is missing today, is exactly what was written there, and that is probably why we are sitting here today. “But we did not follow the recommendations. After we joined the European Union, however, the fears of someone keeping an eye on our affairs subsided, and instead of things drastically getting better, they got drastically worse,” he concluded.
The judiciary is also burdened by the bureaucratic clutter and regulations that are contradictory
“It is true that, as Mr. Florjančič pointed out, just like the other branches of government, the judiciary is also burdened with bureaucracy and contradictory regulations, and the judiciary is not to blame for them. They were adopted by the legislative branch, based on the proposals of the executive branch, but so far, I have been elected to the Slovenian parliament every time, and I was always there, except for when my mandate was taken unconstitutionally. I don’t remember many protests by the judiciary or the prosecutor’s office when additional burdens and additional bureaucratic clutter were being adopted,” The Prime Minister said, referring to the bureaucratic clutter. At the time, we did not hear anything about the attacks on the judiciary and the like, so there is some kind of complicity. However, the judiciary is not the primary culprit to blame. The bureaucratic clutter is a general problem we have, as we have the most regulations per capita in the world, and the judiciary is not the only sector that is burdened by them, Janša pointed out.
We are going in the opposite direction of what needs to be done for the judiciary to gain the trust of the public
At a time when Slovenia was establishing itself as an independent and formally democratic country, we all believed, Janša stressed, that, given that the judgements are made on the behalf of the people, the people would have the opportunity to follow the judicial trials. But then all of a sudden, after joining the European Union, it was suddenly forbidden to even take pictures of a judge at a hearing. On the same day, we watched how a high-ranking official was convicted in Zagreb, with the judge publicly reading the verdict, but in our country, this was forbidden or prevented with court orders. “And then something changed, but it has only partially been implemented. The latest progress – in quotation marks – is the inaccessibility of final verdicts, which is being limited. That is to say, we are going in the exact opposite direction of what needs to be done for the judiciary to gain the trust of the public. Trust cannot be created by talking about excessive criticism and attacks on the judiciary. If the branches of government are separated from each other, then it is probably not forbidden for them to criticise one another, otherwise, I do not know if we can talk about democracy at all.” Janša then added: “For a while, we were even hearing about how everything that the judiciary does must be respected, not taken into account, but respected, which placed this branch of power somewhere above the Pope, on the pedestal of complete infallibility and inviolability.” Even today, the esteemed President of the Supreme Court used this word, saying that the judiciary is being attacked, Janša said, and also pointed out that “When the Yugoslav People’s Army began to respond to all criticism in the former state by saying that the criticism was actually an attack, unconstitutional conduct, hate speech; it only took three more years for this institution to disintegrate, and before that, we all experienced great tragedies.”
Respect needs to be earned, but in Slovenia, people die because of the judicial errors
Prime Minister then said that in Slovenia, politics does not have a high reputation, but this is a minor problem, because elections are held regularly, and people have the opportunity to correct the mistakes next time. “In other words, the politics of a party, Parliament, the government, the National Council, can never relax. Judges, however, have a permanent mandate. The fact that a permanent mandate was granted by the Parliament, does not mean anything in many cases, because the proposals were made by the Judicial Council, in violation of the law. This can be proven and has been proven. So here, as a country, we are faced with a big problem,” the Prime Minister was critical, adding that, from a human point of view, it is very hard to listen about how some are affected by the criticism, “but on the other hand, because of your judicial errors, Mr. Florjančič, people die, have their families, careers, and lives destroyed, and not in the SFRY, but in an independent, democratic Republic of Slovenia, where all we talk about are human rights.”
“The last time I was in prison, where you sent me with a verdict of the Supreme Court, I met a man who was sentenced to 3 and a half years for a crime, for which the law dictates a sentence of up to 3 years,” Janša said, adding that nevertheless, the verdict was passed by the District Court, the High Court, and the Supreme Court. The man did not have enough money to appeal to the European Court, where the verdict would have fallen. I can list many more of such so-called judicial errors, the Prime Minister assured everyone.
“You have a case that is still pending and should not be commented on, but I will comment on it because it fell under the statute of limitations a few days ago. From the two parallel lawsuits, it was clear to every layman, who is most likely the killer of Mr. Jamnik, the director of the National Institute of Chemistry, but the judge who pointed this out, has now been suspended, and other things are also happening to him. If this is the high standard of the Slovenian judiciary, Lord have mercy on us. No report by the European Commission or anyone else can cover this up, because it is obvious.”
You would send someone who has never driven a train before, to drive a high-speed train
“I have heard comments,” Janša reminded everyone, “that the National Assembly rejected the candidates in a couple of cases. In certain cases, the Judicial Council proposed a candidate, for the position of a judge of the Supreme Court, who has not worked in a courtroom for a single day. You would send someone who has never driven a train before, to drive a high-speed train. And then it is a terrible scandal that the members of parliament refuse to accept such a candidate, and you are even supposed to suggest the same person for the same position again.” He also said that there is a saying that has probably been uttered by someone else before but is attributed to Thomas Jefferson. The saying goes, when injustice becomes law, resistance becomes duty. “This quote is being abused on the streets of Ljubljana every Friday. But those who are protesting, are actually those who are defending their own privileges.” If you yourself in the judiciary are not able to seriously reflect on the situation, and then reform and self-correct, because politics is probably not capable of that, the Prime Minister warned, then those whose lives are being ruined, will protest. But those protests will be different. We saw them recently in one of our EU partner countries. Slovenian media write a lot about Hungary, Poland, about the judiciary there, but very little about Slovakia, he continued. At the moment, the Slovak Parliament is drafting a special law that will alter a little more than 20 regulations in the field of judiciary and it will do what must be done in Slovenia, and the judiciary must be the one to take the initiative for it.
Janša reminded everyone that there have been mass demonstrations in Slovakia, and judges were being arrested. “I think there are over 30 in prison at the moment, and I think there will be twice as many in the coming weeks because the matter has gone too far.” And this is a country that is a member of the European Union, he added, saying that he can also provide details about the situation, as he has already looked at the law. “However, I think,” he optimistically concluded, “that in Slovenia, this can be avoided and that the judiciary can examine the situation on its own, look at where the problems are self-critically, and admit to those that are inevitable. If somebody is naked, it sooner or later turns out that he is, in fact, naked, even if he or she brags about how beautiful his or her outfit is. At some point, the fact can no longer be hidden, because otherwise, despite the fan support by the mainstream media in Slovenia of the, as you call them, judicial errors, the reputation of the judiciary would not be among the lowest in the European Union, if this was just a matter of how it looks. Clearly, it is not.”
I suggest two things, Janša concluded his address
Firstly, the judiciary should open up, so that the people can see how things are being judged. Because with more transparency, the judges and prosecutors who were proven to have messed things up, or who have wrongly sued and judged, would not get a promotion, contrary to what is currently the case,” Janša explained his first proposal. He added that if some of the more high-profile trials had been broadcast live, there would not be 50 hearings, but perhaps only three. “If you are so convinced that you know how things should be done right, how things are done according to the constitution, according to the laws, according to the criteria, then I do not understand why there is such resistance towards broadcasting the hearing and trials. We are living in the 21st century, the Internet exists. Let’s have a one-year trial period and we will see who is right. In Slovenia, judgements are still being made in the name of the people, yet the people are not allowed to see how cases are being judged, not in general, let alone in concrete cases. Certain so-called experts are full of criticism for the countries that are supposed to be worse than us, but in most of these countries, the judiciary is more open to the people and the people can follow what is happening,” he added. “And based on this, it is very difficult for a country that has the highest number of overturned verdicts by the European Court of Human Rights, to make progress.”
Janša presented his second proposal at the end of his address, saying that he proposes “that you seriously examine this omnibus Slovak law and that the Judicial Council or the judicial branch of the government, in cooperation with the State Attorney’s Office – for which is not known in Slovenia whether it is a part of the judicial or the executive branch, proposes the law by itself. That way, we will avoid political debates, prestigious issues, and I think we will all be very pleased when the principles, which you quoted earlier from the Constitution, will come to life in practice, because right now, they are just dead letters on paper, in most cases.”