Prime Minister Janez Janša: The Slovenian judiciary would have to be able to perform a serious reflection of the situation and implement self-correction
Today, Prime Minister Janez Janša attended a meeting of the highest representatives of all three branches of government on the topic of "The principle of the separation of powers: (self)restriction, mutual supervision and mutual cooperation" at the Presidential Palace in Ljubljana.
The meeting, organised by Borut Pahor, the President of the Republic of Slovenia, focused on the discussion about the scope of mutual cooperation and supervision of individual branches of government arising from their constitutionally defined roles with an emphasis on the urgency of respectful and constructive dialogue.
The entire address of Prime Minister Janez Janša at today’s meeting is provided below. The address is not authorised.
Dear Ladies and Gentlemen,
Thank you, Mr President, for organising this meeting. I did not exactly know what the debate would be about, except for the search for formal answers to certain problems that have occurred, but I now see from the list of people invited that an issue of the judicial branch of government prevails here. There are few representatives of the executive and even fewer of the legislative branch.
I understand what we are talking about now.
Unlike everyone present here, I can also shed some light on this issue from the other side, which is due to certain people sitting at this table. I will start by talking about events that occurred 32 years ago. After a week-long hunger strike, the Criminal Procedure Act and both criminal codes of the then Socialist Federal Republic of Yugoslavia and Socialist Republic of Slovenia were brought to my cell, the solitary confinement of the military court on Metelkova Street. As I was reading the introduction to one of these acts, I think it was the criminal code of SRS, i.e. the Socialist Republic of Slovenia, which did not differ much from the introduction of the federal criminal code, it stated: "The judicial system is the tool of the avant-garde, that is the Communist Party, for the realisation of its programme, and the criminal law is the tool for destroying the class enemy." This was not written in four clauses. It was written on several pages, but that was the point.
So, 32 years ago, we had a judicial system and criminal law that was formally defined as a tool for destroying the class enemy. Mr Florjančič says that miscarriages of justice also took place. I think that the root of the problem we will discuss lies in this diametrically opposing opinion of what a miscarriage of justice is.
Both forewords to criminal codes were written by a distinguished professor of criminal law, who is still today Professor Emeritus at the Faculty of Law in Ljubljana and who also held an authority in establishing other elements. It is interesting that six months after I read his words, the then Socialist Alliance appointed him the president of the council for human rights protection. This is a man who wrote in the foreword of the criminal code that criminal law was a tool for destroying the class enemy. This was not just mentioned in the foreword, this actually took place. Hundreds of people were sentenced to death and executed. Based on this formula, they were arrested, their lives, families and careers were destroyed, and they were exiled to locations around the world. Mr Florjančič, these were not miscarriages of justice; this was a system for destroying people.
After everything that happened outside the cell in Metelkova Street, Slovenia held a multi-party election, adopted a new constitution, and finally became independent. The new constitution consists of everything that some of you have cited. It must be acknowledged that the Slovenian Constitutional Court did a lot for theoretical and de iure abolishment of the opinion regarding the role of criminal law and the judiciary in the one-party regime in those first years. It rectified many injustices done to individual groups and concrete individuals, obviously those who survived.
The Supreme Court also contributed significantly in both directions in those first years of the 1990s. With strong arguments, it declared the former secret political police to be a criminal organisation. It annulled several political processes – although not all of them – which continued for a substantial period, and it seemed that Slovenia was becoming a normal state with a normal judiciary, de facto observance of the separation between the branches of government, de facto met Copenhagen criteria for accessing the EU and that things were normalising.
massacre sites started to be discovered. So far, over 700 massacre sites have been found in Slovenia with direct evidence that tens of thousands of people were killed not during the war, but after it. The official list of the competent commission currently includes over 670 discovered mass massacre sites, and the Slovenian judiciary and prosecution service have not processed a single one for the crimes that are not time-restricted according to the international law or the Slovenian legislation.
At the same time, the former Social Accounting Service filed over 700 complaints regarding fierce ownership transformation. A significant amount of Slovenian state assets were stolen, although the Slovenian prosecution service and the judiciary did not incarcerate anyone, and even that one person who was in prison, was later pardoned by the president.
Somewhere halfway through this so-called transition period, things started to move in the opposite direction.
In 1994, a new act on judicial service was adopted. At the proposal of Dr Jože Pučnik, the so-called Pučnik’s amendment was incorporated in the act, which still stipulates that those who violated human rights when performing their judicial function in the previous regime cannot be appointed a permanent term. I think that the Judicial Council observed this act only in one case and wrote in all other cases that it did not dispose of information if the candidates proposed for permanent term violated this article of the act. Although judgments or indictments that proved otherwise were made public, books were written about this, documentaries were made, the Judicial Council knew nothing about it.
Trust in the judicial branch of power declined drastically. Of key importance for the assessment of trust in elected politicians is the trust of people expressed at the elections, which is measured with other means in the judicial branch of power. We have seen many research, including European research studies, according to which trust in the judicial branch of power is at one of the lowest levels in Europe, and that was after we had already joined the European Union.
When we negotiated for the accession to the European Union, we asked for help from our later partners. Slovenia was appointed German supreme judge Dukoff who made some 20 to 25 recommendations about what Slovenia should do to raise the Slovenian judicial system to the level of European average or what must be done to attain such level. The later Minister of Justice, Mr Zalar, described these recommendations as unnecessary lecturing from a European pedestal that does not understand the situation in Slovenia.
If you read those recommendations today, you will see that they describe exactly what is missing and why we are likely sitting here today. But we have not done it. After we joined the European Union, the fear of being closely monitored dispelled and things drastically worsened instead of significantly improving.
It is true what Mr Florjančič said that the judiciary is like other branches of government burdened by bureaucratic clutter and regulations that are contradictory for which the judiciary cannot be blamed, as these were adopted by the legislative branch at the proposal of the executive branch. However, I have been elected into all compositions of the Slovenian parliament so far and I have also been present there unless my term was unconstitutionally suspended, and I do not remember the judicial branch or prosecution protesting much when additional burdens and bureaucratic clutter were being adopted. Nothing was heard then about the attacks on the judiciary and similar. There is some complicity there, although it is not primary. Bureaucratic clutter is our general problem. We have the largest number of regulations per capita in the world and that does not burden the judiciary explicitly.
When Slovenia was establishing itself as an independent and formally democratic state, we all believed that since judgments were made in the name of the people, these people would have the opportunity to follow trials. All of a sudden and after accessing the European Union, we found ourselves in the situation where it was even prohibited to take a photo of a judge at a hearing, although on the same day we were able to watch a high official being sentenced and a judge reading the judgment publicly in Zagreb while this was prohibited or prevented by court rule in Slovenia. A change occurred later, which is only being partly implemented.
”Recent progress” towards public openness presents the inaccessibility of final judgements, which is restricted. This means that we are moving in the completely opposite direction of what must be done for the judicial branch of government to win the public’s trust. Trust cannot be obtained while we are talking about excessive criticism and attacks on the judiciary. If the branches of government are separated, then it is probably not prohibited to express criticism; how else can we speak about democracy? For a while, we also listened to the assertion that everything the judiciary does must be respected. Not observed, but respected, which placed this branch of government somewhere above the Pope on the pedestal of utter infallibility and inviolability.
Even today, the esteemed President of the Supreme Court used these words as if the judiciary was under attack.
I would like to point out that when the Yugoslav People’s Army of the former state began replying to each criticism as if they were attacks, unconstitutional conduct or hate speech, it took only three years for this institution to dissolve, although before that happened we all experienced significant tragedies.
Reputation must be earned. Politics does not enjoy a good reputation in Slovenia, but that is a minor problem as elections take place at regular intervals and people have the opportunity to correct the mistake they made previously since the policy of a party, the National Assembly, the Government or the National Council is exposed. But judges enjoy a permanent term. The fact that terms are granted by the National Assembly does not mean anything in several concrete cases, as the proposals provided by the Judicial Council were contrary to law. This may be proven and has been proven. As a state, we face a major issue in this regard.
I have to say that it is very difficult to listen from a human perspective to the ways in which certain people get hurt because they are criticised, while on the other hand, Mr Florjančič, people are dying, have broken families and destroyed careers and lives due to your miscarriages of justice, and that did not happen in the Socialist Federal Republic of Yugoslavia, but instead in the independent democratic Republic of Slovenia where we boast of observing human rights.
When I was last in prison, where you sent me with the judgment of the Supreme Court, I met a man who was sentenced to three and a half years’ imprisonment for a criminal offence whose highest possible sentence was three years as stated by the law. His judgment went through the first instance, the Higher Court and the Supreme Court. He had no money to appeal to the European Court, where this judgment would be overturned. I could produce a number of such so-called miscarriages of justice.
There is a case, which is still undergoing and should not be commented on, although I will do so anyway since it was formally time-restricted a few days ago. It is clear to every lay person who is the likely murderer of Mr Jamnik, the Director of the National Institute of Chemistry, from two parallel judicial proceedings, although the judge who pointed that out is undergoing disciplinary proceedings and I do not know what else is happening to him. If this is the high standard of the Slovenian judiciary, then God help us. No report of the European Commission or anyone else can conceal this because it is obvious.
There were complaints that the National Assembly rejected certain candidates. In some cases, the Judicial Council proposed candidates for judges of the Supreme Court who did not have a single day of court experience. You would assign someone to drive an express train who has not driven a train for even an hour, and consider it to be a terrible affair that the deputies rejected your proposals and you even wanted to file the same again.
There is a saying, which was probably formulated by someone else before, but is commonly attributed to Thomas Jefferson, which states: "When injustice becomes law, resistance becomes duty." This saying is being abused every Friday on the streets of Ljubljana. The protests are attended by those defending their privileges.
If you in the judiciary are unable to make a serious reflection of the situation, a reform and self-correction since the policy is likely incapable of this, then those whose lives you are destroying will protest. These will be different kind of protests. We have recently seen them in one of our partner countries, an EU Member State. The Slovenian media has written a lot about Hungary, Poland and their judiciaries, but little has been said about Slovakia.
At this moment, the Slovakian parliament is examining a special act that will amend more than 20 regulations relating to the judiciary and is doing what we should be doing or the judiciary should be giving the incentive to do.
Mass demonstrations occurred and judges were arrested in Slovakia. I think there are currently more than 30 judges in prison, and I believe that twice as many will be imprisoned in the following weeks because things went too far. And this is a country that is a European Union Member State. I can also provide details because we have reviewed the act. However, I think that we can avoid such situation in Slovenia if the judiciary examines the circumstances on its own, self-critically reviews the problems and acknowledges those that are unavoidable. If someone is naked, it is sooner or later revealed that they are naked, even if they continue to proclaim how beautiful their clothes are. At a certain point, this can no longer be concealed or else the reputation of the judiciary would not be among the lowest in the European Union even with the vocal support of miscarriages of justice, as you call them, by the Slovenian mainstream media. If only our image was concerned. But it is not about image.
I propose the following two solutions.
Firstly, to open up the judiciary so that people can see how judgments are made. As a result, judges and prosecutors will no longer be those who failed based on evidence or incorrectly and wrongfully prosecuted, ruled or were promoted as it is currently believed.
If a few high-profile proceedings were broadcast live, there would not be 50 hearings, but perhaps only three. If you are so certain that things are being done correctly and according to the Constitution, law and criteria, then I do not see why there is such resistance against broadcasting judicial proceedings. We are in the 21st century; we have the Internet. Let us try this for one year and we will see who is right. Judgments are still made in Slovenia in the name of the people, but the people have no insight into how it is trialled, not only in concrete proceedings, but also in general.
Certain so-called experts criticise countries that are supposedly worse than ours, but the judicial branch of government in the majority of these countries is more open to people who can regularly follow the proceedings.
Based on this, a country, which has the largest number of annulled judgments of the European Court of Human Rights, progresses with difficulty.
This was the first proposal.
The second proposal is to examine the omnibus Slovakian act with all seriousness and that the judiciary, the Judicial Council or the judicial branch itself in cooperation with the prosecution service, for which it is unclear in Slovenia whether it belongs to the judicial or executive branch, propose a solution. In this way, we will avoid political debates and the questions of prestige. I think we will all be very happy once the principles you previously cited from the Constitution come to life in practice, as they are currently a mere dead letter in the majority of cases.
Prime Minister Janez Janša spoke again later in the conversation. Below is his opinion, which has not been authorised:
The President of the Constitutional Court has talked a lot about respectful discourse. Before I came to the meeting, I read a decision of one of the state attorneys who as good as labelled death threats as respectful discourse. There are people in Slovenian squares and streets shouting "Kill Janša", "Death to Janšism", some faculty or academy is even mass-printing posters containing this threat. After the praiseworthy and historical act of peace at Saturday’s Carinthian plebiscite centenary – a special thank you for this major act goes to the President of the Republic – we witnessed an act of vandalism in our neighbouring country under this slogan, featuring a death threat. Look, having a theoretical discussion about how everyone needs to be respectful is one thing, but the cruel reality that is taking place with the assistance of a body that doesn’t know whether it belongs to the executive or the judicial branch is another. This same body doesn’t know if one billion dollars of laundered Iranian money at a time when three-fold international sanctions have been imposed is a criminal offence or not. After ten years. In the international circles that count, it is very difficult to explain this, and it has a significant impact on our reputation in the world.
Regarding the career path. Perhaps I wasn’t clear enough. I agree that it is not necessary for a Supreme Court Judge to be someone who previously served at all instances and the high court and only then runs for the Supreme Court. I think that is too rigid. But if someone who has been a student, an assistant professor and a professor and has never seen the inside of a courtroom goes on to become a Supreme Court Judge, look, that, to me, is no enrichment of the judiciary. If he was a lawyer, a state attorney, even... Formally we need to come up with a very clear definition of a career path in legislation. It is very loose as things stand. On the other hand, we have practically five regulations stipulating whether a chair in the courtroom must face north or south.
Lastly, the President of the Supreme Court says that everyone must do their part. Those representing the executive and the legislative branches agree on the procedure, be it the Government or the National Assembly; we certainly won’t stand in the way of any proposal you make to sort things out. We will help you. We can even make some suggestions ourselves, but in the situation in which Slovenia finds itself, this would not be productive. I believe it is up to the judicial branch to propose what changes to make. Mr Florjančič, I am very open to concrete suggestions from you about what changes must be made, just not in the sense of who shouldn’t be criticised – I mean concrete issues. I suggest that you do everything to ensure that judicial inquiries in minor cases don’t last six years and then end when it is in someone’s political interest. That is in the hands of the judiciary.