It is quite possible that the Supreme Court judge Branko Masleša does not meet the conditions for the profession of a judge – from the year 1980 onwards. This follows from point 6 of the decision of the Supreme Court of the Republic of Slovenia I Up 116/2020: “Since these were republic regulations, only the bar exam passed in accordance with the regulation in force in the Republic of Slovenia, and not in accordance with the regulations of any other republic of the former Socialist Federal Republic of Yugoslavia, is recognised as equal to the state’s legal exam, on the basis of Article 34 of the State Legal Exam Act.” And while we are unsure about the condition related to the state’s legal exam, we are certain that Masleša did not meet the conditions for the election for a permanent judicial term under the Judicial Service Act. Thus, in 1994, he was illegally elected for a permanent term and is, therefore, an illegally appointed judge – as follows from the decision of the Supreme Court, which ruled in 2020 that the 1985 Bosnia and Herzegovina bar exam was not sufficient for the postulate candidacy before the Supreme Court of the Republic of Slovenia because it does not demonstrate the ability to operate at the level presented by the Supreme Court of the Republic of Slovenia.
Article 22 of the Administrative Dispute Act stipulates that a client may only be represented before the Supreme Court by a person who has passed the state legal exam or that a client may do so themself, only if they themself have passed the said exam. For example, if the client files a revision or an appeal in an administrative dispute, on which the Supreme Court is competent to decide, and the client themself has not passed the state legal exam, or if this is done by a representative who has not passed the state legal exam, the Supreme Court would reject such an application and would not consider it at all. The Contentious Civil Procedure Act is even stricter, as it requires the state legal exam not only for proceedings before the Supreme Court, but also for proceedings before the district and higher courts. Therefore, in order for the representative (or the clients themselves) to have access to these courts, they have to have the state legal exam, according to the legislation. This is the so-called postulation ability, the purpose of which is not to burden the courts with the appeals of persons who do not have the appropriate (formal) qualifications that would allow them to properly engage in the process professionally. And the prescribed formal criterion for whether they meet this professional condition is the possession of proof of passing the state legal exam. For criminal proceedings, the Criminal Procedure Act indirectly (by stipulating in Article 67 that the defendant’s defence counsel can only be a lawyer – meaning a person who has passed the state legal exam) requires this condition to be met by any person who wishes to appear before any court, meaning even before the lowest, district court.
In 2020, the Supreme Court of the Republic of Slovenia, by the decision of the Supreme Court of the Republic of Slovenia I Up 116/2020 of the 19th of November 2020, decided that the 1985 Bosnia and Herzegovina state legal exam was not sufficient for the postulation ability before the Supreme Court of the Republic of Slovenia, because it does not demonstrate the ability to operate at the level represented by the Supreme Court of the Republic of Slovenia. “If an appeal filed by such a person to the Supreme Court of the Republic of Slovenia is not admissible, and therefore the Supreme Court would reject such appeals (as it says in the case law, it regularly does so), then how is it permissible for a judge with the same qualifications to decide on the matters of the court, possibly even some that are then rejected?” the web portal prava.si wondered recently. In their explanation, they wrote that the court of the first instance, in its decision of the 3rd of June 2020, rejected the plaintiff’s appeal filed against the decision of the same court of the 26th of August 2019, rejecting the plaintiff’s lawsuit. It dismissed the appeal because, despite the summons, the plaintiff did not submit a certificate that would prove that he had passed the state legal exam in the Republic of Slovenia. A certificate of passing the bar exam in the Socialist Republic of Bosnia and Herzegovina on the 22nd of January 1985 and a certificate of the 5th of March 2020 that the plaintiff was entered in the register of lawyers in the Federation of Bosnia and Herzegovina was deemed not sufficient to demonstrate the postulation ability.
There are quite a few questions currently going around about Masleša’s bar exam and diploma, and what is the most questionable is how he was able to pass the exam in such a short time. Generally, before sitting the exam, a lawyer is supposed to do a two-year internship, while Masleša took the bar exam less than a year after completing his studies while also serving his military service, presumably in Zadar. Judging by the certificate, he took the exam in the same country in which he also studied, meaning in Bosnia and Herzegovina – which obviously complicates things quite a bit. If in the former Socialist Federal Republic of Yugoslavia, the state legal exams were the responsibility of the republics and provinces, it is quite clear that the exam, which was passed according to the regulations of another socialist republic, was not valid beyond the borders of the republic in question.
Is Masleša’s appointment to the position of judge actually illegal?
From all of the above, we can conclude that Masleša did not meet the conditions for becoming a judge in the territory of the Republic of Slovenia in 1980. Bar exams were the responsibility of every republic. And according to this logic, of course, he still does not meet the conditions to be a judge today. If all of this is true, then him being a judge is not in accordance with the law. According to the case law of the European Court of Human rights in the case of Xero Flow v Poland, this could mean that in all of the cases in which he tried, the right to a fair trial under article 6 of the European Convention on Human Rights was violated. He is also not legally in the position of a judge because, according to some, he should be lustrated under Article 8, paragraphs 2, of the Judicial Service Act, due to serious human rights violations during the time of the undemocratic regime: “Notwithstanding the provisions of the previous paragraph, the judges in investigative and judicial proceedings, in which fundamental human rights and freedoms have been violated by the judgment, do not meet the conditions for election to the judicial office after the expiry of their term in office.” This condition is as binding as the diploma condition, the passing of the state legal exam, being older than 30, the legal capacity, and so on.
Was Masleša’s Sarajevo diploma recognised?
In addition to the above, point 4 of the first paragraph of the Judicial Service Act stipulates that a candidate for the position of a judge has to have a professional title of university graduate lawyer or professional title of graduate lawyer and the master’s degree from law – both conditions require the degrees to be obtained in the Republic of Slovenia, or that he has completed comparable education abroad in the area of law, which can be proven by a foreign certificate of education and the attached description of the education or the recognition of education for the purpose of employment, or the decision of validation of a degree. We do not yet know whether Masleša’s diploma from Sarajevo was recognised as valid – when applying for a permanent judge’s mandate in 19945, he should have at least added an “opinion on education” to the application – however, Masleša has still not explained where any of the previously mentioned documents are – if they even exist. But that is probably “beneath him.”
To sum it up, in proceedings before the District, Higher, or Supreme Court, the representative can therefore only be a lawyer or another person who has passed the state legal exam, as says Article 87 of the Civil Procedure Act. In addition, Article 76 of the Criminal Procedure Act states that only a lawyer may be considered a defence counsel and may be replaced by a lawyer candidate. And before the Supreme Court, only a lawyer can act as the client’s representative. The court also ruled that the 1985 state legal exam from Bosnia and Herzegovina was not sufficient for postulation ability before the Supreme Court of the Republic of Slovenia – even if the certificate was obtained before the break-up of the Socialist Federal Republic of Yugoslavia – because it does not demonstrate the ability to act at the level represented by the Supreme Court. If the role of such a person is not admissible in the Supreme Court and therefore the said court would reject such a person’s application, then how is it permissible for a judge who has a bar exam from Bosnia and Herzegovina to rule on court proceedings in said court? And although it has not done it so far, now would be a good time for the Ministry of Justice to speak up on the matter, and the President of the Supreme Court, Damijan Florjančič, should also provide us with answers.
Sara Bertoncelj
