It is becoming increasingly clear that even at the time of his appointment in 1980, Supreme Court judge Branko Masleša did not actually meet the conditions for the position of Supreme Court judge, which can be understood from the act on internship, state legal exam and improvement of professional education of workers in administration and justice of 1980. And apparently, the Supreme Court also understands it as we do, as it used this act for its decision no. I Up 116/2020, regarding the state legal exam, writing: “Since these were republic regulations, only the state legal exam passed in accordance with the regulation in force in the Republic of Slovenia, and not in accordance with the regulation of another republic of the former Socialist Federal Republic of Yugoslavia, can be equated with the Slovenian state legal exam, on the basis of Article 34 of the State Legal Exam Act.” Therefore, even if Masleša’s proof of passing the state legal exam was actually valid and indisputable, he could not really use it in Slovenia anyway. And if his initial appointment was illegal, all other appointments derived from it were also illegal – including the appointment for a permanent term in 1994 and all the appointments after that. If the state legal exam from Bosnia and Herzegovina is not recognised in our country, all the judgments that Masleša took part in are rebuttable – if ever, now would be the right time for the Supreme Court judge in question to show the public his required certificates and prove his validity.
Some time ago, we sent a question to the Ministry of Justice, asking them on what basis and when or where the state legal exam of Supreme Court justice Branko Masleša was recognised – if it even was. Namely, in 2019, the ministry itself wrote that there is no legal basis in Slovenian legislation for the recognition of the state legal exams from other countries to be recognised as valid in the Republic of Slovenia. The ministry replied that up to the point when the State Legal Exam Act entered into force, the third paragraph of Article 105 of the Judicial Service Act stipulated that passing the state legal exam or any other exam which is, by law, equivalent to Slovenia’s state legal exam, is considered as meeting the condition referred to in point 5 of the first paragraph of Article 8 of this act. When the State Legal Exam Act came into force in 1994, the transitional provision stipulated: “The provisions of this Act equate any state legal exam and the examinations which are considered it’s equivalent according to the regulations which have been in force up to this point, to be equal to the state legal exam.” They also wrote that the documentation on whether the conditions for the appointment of the position of a judge in the case in question under the conditions of the Judicial Service Act have been met, was verified at the time of the appointment to a permanent mandate in 1994 and was sent to the Legal Council. We, of course, asked if we could get it.
The ministry obviously wanted to say that Masleša’s bar exam is also valid in Slovenia – however, what the provision of the third paragraph of Article 105 of the Judicial Service Act, which says: “A person who has passed the state legal exam or another exam that is legally equated with the state legal exam meets the required conditions,” really means, is a matter of explanation. This explanation was also given by the Supreme Court in the decision by which it decided that the state legal exam passed in Bosnia and Herzegovina is not valid in the Republic of Slovenia. The explanation given by the Supreme Court of the Republic of Slovenia in the aforementioned decision shows that the condition for appointment to the position of a judge was passing the state legal exam in the former Socialist Republic of Slovenia. Therefore, we also had to check the former regulations on courts, which were in force at the time when Masleša was appointed to the position of a judge in 1980. Was one of the conditions for the appointment a state legal exam from any of the republics of the former Yugoslavia, or was it only a state legal exam passed under the legal provisions of the republic in which the candidate was to serve as a judge?
Therefore, there are quite a few key questions related to Masleša’s case – for example, whether the state legal exam passed in Bosnia and Herzegovina in 1980, the year when Masleša was appointed to the position of a judge in the Ordinary Court in Koper, was sufficient for an appointment under Slovenian law in force at the time. The answer to this can be found in the act on internship, state legal exam and improvement of professional education of workers in administration and justice (Official Gazette of the Socialist Republic of Slovenia, No. 8/80). The Ordinary Courts Act also refers to the aforementioned act, and the decisions of the Supreme Court of the Republic of Slovenia related to this topic are also important for our research. Namely, the Supreme Court of the Republic of Slovenia explained the concept of the state legal exam with the two decisions. Therefore, it does not seem that Masleša actually meets the conditions for the position of a judge, as he did not meet the required conditions in 1980 either. His “certificate of passing the state legal exam” is also controversial, as the identification data of the candidate are missing from it. What is also questionable is how was he supposedly able to pass the bar exam while performing his mandatory military service? Namely, he would have been required to do judicial practice in courts, the prosecutor’s office, and the attorney’s office before being able to pass the state legal exam. And last but not least, it is also disputable, or at least unusual, that he passed the state legal exam in Bosnia and Herzegovina, even though he was performing his military service in the army in Zadar, Croatia at the time. So are we any closer to answering the question of whether the state legal exam from Bosnia and Herzegovina was adequate for him to be able to fill the judicial position in Slovenia?
Now let us refresh your memory of Masleša’s career path – since all of the data on it was removed from the internet when we began inquiring about his education. Masleša graduated from the Faculty of Law, University of Sarajevo, in 1976. After graduating and performing his military service, he worked as a Deputy Public Prosecutor at the Municipal Public Prosecutor’s Office II. In Sarajevo. On the 1st of April 1980, he was elected to the position of a judge in the Criminal Division of the Ordinary Court in Koper. On the 18th of October 1984, he was elected a judge of the High Court in Koper, and on the 18th of October 1994, he was elected to a permanent judicial position of a higher judge in the same court. From 1994 to 2000, he was the head of the criminal department at the Higher Court in Koper.
But as we can interpret this law, and as it is clearly interpreted and (at least indirectly) explained by the Supreme Court of the Republic of Slovenia (in its decision no. I Up 116/2020: “Since these were regulations of the republic, only the state legal exam carried out in accordance with the regulations in force in the Republic of Slovenia, but not in accordance with the regulations of another republic of the former SFRY,…”), Masleša did not meet the conditions for the position of a judge in the Socialist Republic of Slovenia at the time of his appointment in 1980 already – even if his proof of passing the state legal exam was actually valid and indisputable, he could not really use it in Slovenia anyway. And if his initial appointment was illegal, all other appointments derived from it were also illegal – including the appointment for a permanent term in 1994 and all the appointments after that.
We wondered which article could tell us that on the basis of Article 34 of the State Legal Exam Act, only the state legal exam passed in accordance with the regulations 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 equal to the current state legal exam. However, lawyers have pointed out that the issue on hand is the exact opposite – namely, which article stipulates that any state legal exam conducted in accordance with the regulations of another republic of the former Socialist Federal Republic of Yugoslavia is equivalent to the current state legal exam in Slovenia. The judiciary was under the jurisdiction of the republic back then, and therefore, the regulations of a republic should specifically stipulate that the state legal exam conducted according to the regulations of other republics and in the other republics are equal to passing the state legal exam under the law of a certain republic.
We did not find an article in any of the legal acts that would equate the state legal exams from the other republics with the state legal exam under Slovenian law
However, we did not find such an article – and because it does not exist, state legal exams from the other republics were obviously not equated with the state legal exam under Slovenian law. This can also be read in the decision of the Supreme Court, number I Up 116/2020, which explains why the exam for the position of judge or lawyer had to be passed according to national regulations, and why exams passed in the other republics of the former Socialist Federal Republic of Yugoslavia, do not meet the conditions for the appointment to the position of judge or the requirements needed to practice law – you had to know the structure of the republic’s judicial bodes, and in addition, there were significant differences among the legal systems of different republics. It is quite logical from all of the above, and the decision Up 116/2020 additionally shows that the State Legal Exam Act does not stipulate that exams taken abroad or exams taken in one of the other republics of the former Socialist Federal Republic of Yugoslavia are recognised in Slovenia. Therefore, we can almost certainly conclude that Masleša’s “certificate” was not enough for him to be appointed to the judicial position. However, we would be happy if Mr Masleša could prove, with the help of official documents, that we are wrong about this. If state legal exams from Bosnia and Herzegovina are not recognised in our country, then all the judgments Masleša took part in are rebuttable – which does not inspire confidence in our judicial system.
Let us remind you that Masleša also chaired the Senate of the Supreme Court, which decided after the latest vote of the MPs and before the introduction of unpleasant novelties for Dragan Tošić and the so-called Balkan cocaine warriors – this is the reason why they hastily decided to overturn their verdicts, and the warriors were able to walk out of prison. Moreover, we have recently received information that the case of the Balkan Warrior has been re-assigned to the First Instance Court. According to some legal experts, this is potentially due to the Supreme Court’s intentions of dragging the trial out until the case become time-barred. The two-year limitation period starts on the date of the annulment of the judgment in the Supreme Court. There is also a high probability that cocaine traffickers will be acquitted – most members of the Senate of the Supreme Court have decided that the telephone numbers were obtained illegally, and all key evidence had been obtained through wiretapping. According to Supreme Court judge Barbara Zobec, the decision that the majority of judges made is wrong, which she also explained in her extensive and thorough dissenting opinion. And by the way, the web portal Požareport recently revealed the name of the employee of the specialised prosecutor’s office, who leaked information to the so-called “Kavaški” clan – according to Požar’s information, it was Tanja Tolimir, who has been detained since the 10th of November, but the case is still under investigation.
Another privileged Masleša’s judge who does not have a valid state legal exam?
With all of this, we were reminded of another story, namely the one of the senior judge at the District Court in Ljubljana, Jaša Jasminka Trklja, who obtained the title of the senior judge based on the assessment of the judicial service made by the Personnel Council of the Higher Court in Ljubljana, a member of which is also her extramarital partner, senior judge Anton Panjan, who is the president of the court in question. Even if the president of the court withdrew from this vote, it would have been illusory to expect the assessment of the Personnel Council to be any different, as it is an assessment of the work of the partner of one of its members. We already reported on this case and the fact that “they do not hide the means and the way to achieve privileges in the Higher Court at all” about a year ago. But the story became interesting again also because it was allegedly Masleša who brought the mentioned judge to Slovenia in the 1990s – and now we received information that she also does not have a Slovenian state legal exam and is therefore also an illegal judge. We, of course, sent some questions about the matter to the District Court and asked them to forward us the information on her passing the state legal exam.
The Judicial Council has told us that the documentation is not in their archives
We received the following answer from the Judicial Council: “In accordance with your request, we have reviewed the archives and based on the collected documentation we can tell you that judge Masleša was in the candidacy procedure for the election to the position of senior judge at the High Court in Koper in 1994. At the request of the Judicial Council of the 19th of July 1994, and in accordance with the then-valid Judicial Service Act and its Article 104, the assessment of judge Branko Masleša’s work was obtained, which was prepared by the Personnel Council of the Supreme Court of the Republic of Slovenia on the 29th of August 1994. Then, as can be seen from the minutes, at the 4th session, on the 22nd of September 1994, the Judicial Council proposed the candidate Branko Masleša to the National Assembly, for election to the position of senior judge at the Higher Court in Koper. Then, the Judicial Council issued a decision on the 22nd of November 1994, in accordance with articles 20 and 23 of the then-valid Judicial Service Act, in which it found that judge Branko Masleša had been elected to the position of senior judge at the Higher Court of Koper on the 18th of October 1994, and that on the 3rd of November 1994, he was sworn in before the Speaker of the National Assembly and began his judicial service on the same day, and so the judge was also placed in the appropriate salary grade then. The documentation related to the verification of compliance with the conditions under the Judicial Service Act in the procedure of considering Branko Masleša’s candidacy in the previously described procedure, which you are inquiring about, is not in the archives of the Judicial Council and cannot be provided. The criterion of materialised form, which is determined by the first paragraph of Article 4 of the Public Information Access Act, regarding the transmission of the required information, is therefore not met.”
Sara Bertoncelj
