“The Judicial Council should be dealing with this problem,” Supreme and former Constitutional Court Judge Jan Zobec said at the extraordinary session, regarding the qualifications of Supreme Court Judge Masleša, adding that he understands their embarrassment, as no provision exists which provides for the Judicial Council or another state body to act in case it is discovered that a judge does not meet the conditions for the appointment to the judicial office. But letting a judge who does not meet the required conditions for his or her position stay in office with the excuse that “this is none of our business,” or “we cannot find a decree that applies to this,” is a violation of the European Convention, a violation of the Constitution, and also a violation of the EU Charter of Fundamental Rights. “The Judicial Council should start the procedure for reviewing the constitutionality, and it should also draw attention to the unconstitutional legal gap,” Zobec pointed out. However, this upset the SAB MP Maša Kociper, who said that to her, putting all judgments and cases in which Masleša had been a judge under question is a disaster. After her outraged speech, she left the session, which was also obstructed by some other members of the opposition.
Apparently, the opposition just does not want to talk about certain issues. And on Friday, it turned out that the list of these issues also includes any doubts that have arisen regarding Supreme Court Judge Branko Masleša. Namely, an extraordinary session of the Committee on Justice took place on Frida, at which one of the items on the agenda also referred to the aforementioned judge, which provoked a lot of criticism and resistance in the opposition, and some of the opposition MPs even obstructed the session. SDS MP Dejan Kaloh presented the item that spoke, among other things, about the efficiency, reputation and impartiality of our courts. Opposition MP Maša Kociper took this item, which also touched on Masleša, as “another attack of the SDS party on the judiciary.” She said that she and her colleague Tina Heferle were discussing whether they should announce their obstruction of the session immediately or perhaps a bit later. According to Kociper, the sole purpose of the session was to interfere in the functioning of the judicial branch of power and violate the principle of separation of powers, as well as to discredit individual judges – or one judge in particular. She demanded that the item in question be removed from the agenda. She was appalled by the fact that it was apparently not enough for Masleša to show his documents at the request of the Judicial Council – which, in her opinion, reacted very quickly. She found it inadmissible that the committee might discuss the question of the fulfilment of the required conditions of the Supreme Court Judge who was appointed by the National Assembly and who was proposed for the appointment by the Judicial Council. In other words, according to Kociper, Masleša should not be questioned, even if there are good reasons for it.
Kociper also did not like the fact that the President of the District Court, Marjan Pogačnik, who is also her former boss, was also mentioned in the discussion. Supreme Court Judge Jan Zobec was a guest at the session, and she asked him to show his diploma and proof of passing his state legal exam as well. However, Zobec has said many times before that he can show his qualifications for the position of a judge at any time, and this time, too, he reached into the bag to show Kociper the documents she was asking about, but it turned out that she was not actually interested in seeing them. Then her opposition colleague, MP Heferle, said that she is not interested in having a discussion with interlocutors who proposed an amendment to the criminal code last week, which could lead to the freezing of the EU funds for Slovenia. It should be pointed out that the coalition decided last week to not support the proposal made by the Slovenian National Party (Slovenska nacionalna stranka – SNS) to shorten the investigation deadlines. Prosecutor Drago Šketa knew this but still misled the European Chief Prosecutor in Luxembourg on Thursday and demanded that the European funds that were granted to Slovenia be frozen. Before leaving the session, Heferle “complimented” the fact that the Minister of Justice, Marjan Dikaučič, finally found the entrance to the building of the National Assembly. The President of the Judicial Council, Vladimir Horvat, was also present at the extraordinary session. Regarding the issue of Masleša, he said that the whole situation is more complicated than it might seem at first glance. According to him, the law should provide for a procedure that would give the Judicial Council the right to deal with such cases – including the verification of the authenticity of judges’ qualifications. Horvat found no such powers in the legal regulation, so the Judicial Council could not rule on this case. He also emphasised that the Judicial Council expected – not requested – the judge to clarify his circumstances and submit the documents. He then also pointed out that the Judicial Council was looking for information on both Masleša and Judge Jasminka Jaša Trklja, but that they did not find any relevant information in the archives. Horvat does not know who has this information. “This remains unsolved,” he said, adding that the council would once again address this issue at the upcoming session.
The judges are legitimised by independence and qualifications, so education is crucial for the position of a judge
Supreme Court Judge Zobec reiterated that the courts are the fundamental guarantor of the rule of law and that the courts can only operate if we trust them. The judges are legitimised by independence and their qualifications, so education is crucial for a judge. That is also why this is the neuralgic point of the right to a trial before a court established by law. This right falls if one of the judges is appointed illegally. The European Court of Human Rights has already ruled on this issue several times, and the criteria for assessing the legality of a judge and his appointment have become much stricter. The Court of Justice of the European Union has pointed out that an illegally appointed judge can be blackmailed and thus remains a major debtor to the person or people who appointed him or her. That is why this element of the right to judicial protection is so very important. Therefore, Slovenia is facing the problem of having appointed judges who passed their state legal exam in the former republics of the Socialist Federal Republic of Yugoslavia but were then appointed to the position of a judge here, in Slovenia. And the Supreme Court has already ruled on this issue once before – it has ruled on the validity of the state legal exams from the other republics. Why are such exams not valid in Slovenia? In order to perform a judicial function, a candidate must know the structure and operation of the judiciary of an individual republic, as many areas of law were regulated differently. The organisation of justice itself was also under the jurisdiction of each separate republic. Therefore, according to the previous ruling of the Supreme Court, and even according to the provisions of the previous legal regulations – namely, the State Legal Exam, Apprenticeship and Professional Exams Act from 1972 and 1980 – the state legal exams passed in the other Yugoslav republics were not directly valid in the Republic of Slovenia. And here we are faced with the problem of this erroneous appointment of some judges in Slovenia – and even in the previous regulation, the state legal exam was one of the conditions for the appointment to the position of a judge, which was supposed to be conducted in accordance with the State Legal Exam and Apprenticeship Act of 1980, or in accordance with the State Legal Exam Act before that.
The Judicial Council should initiate proceedings to review the constitutionality and draw attention to the unconstitutional legal gap
“The Judicial Council should be dealing with this problem,” Supreme and former Constitutional Court Judge Jan Zobec said at the extraordinary session, adding that he understands their embarrassment, as no provision exists which provides for the Judicial Council or another state body to act in case it is discovered that a judge does not meet the conditions for the appointment to the judicial office. But letting a judge who does not meet the required conditions for his or her position stay in office with the excuse that “this is none of our business,” or “we cannot find a decree that applies to this,” is a violation of the European Convention, a violation of the Constitution, and also a violation of the EU Charter of Fundamental Rights. Therefore, there should be a provision in Slovenian legislation that would regulate such problems. The Judicial Council should turn to the Constitutional Court and say that there is a legal gap in the regulation, which does not enable a solution to the situation where we are possibly dealing with an illegally appointed judge. Not dealing with this problem means tolerating human rights violations in all subsequent proceedings, when the judge in question would make rulings, and the judgments in all these cases are challengeable. And the Judicial Council must not allow for that to happen. “They should start the procedure for reviewing constitutionality and point out the unconstitutional legal gap,” said the former Constitutional Court Judge, who also highlighted the lack of transparency of the Slovenian judiciary, as well as the lack of publicity – the sessions of the Judicial Council should also be open to the public. Zobec also pointed out that conflicts of interest are happening in the Judicial Council, as there is a lawyer who is a member there, whose job is not currently on standby. He is a member of the Judicial Council and a lawyer at the same time, and thus, he is able to exert considerable pressure on the judges.
The MP is not in favour of former Judge Radonjić
SD MP Meira Hot pointed out that only certain judges, who belong to a certain political option, are being targeted and that – if anything – all judges and prosecutors should be checked. She said that, in her opinion, the extraordinary session was intended only to discredit the person who did not deserve this, which only deepens the distrust in the judiciary. The MP then announced that she intended to obstruct the session. Meanwhile, MP Kociper, who also announced that she planned to obstruct the session at the beginning, remained in her seat. “What is going on here is a disgrace,” she said. She expressed her astonishment as to why lawyer Aleksander Pevec was also invited to the session but then found that Pevec was defending former Judge Zvjezdan Radonjić, who is in conflict with the judiciary because he was forced to leave. “We all knew that this was a very problematic person,” she described her former work in court. According to her, Radonjić always had some problems and was always being excluded from cases. Namely, Kociper believes that Pogačnik’s decision to propose that Radonjić be subject to disciplinary proceedings was the right decision. Let us remind you that for years, the reviews of Radonjić’s work were excellent, so Kociper’s words are more than obviously extremely biased.
Kociper believes that wondering about Masleša’s qualifications is a disaster
“What Masleša’s colleague, Supreme Court Judge Zobec dared to do just now, to throw this nuclear bomb with which he put all the verdicts and cases in which Masleša has ever been involved under question, is a disaster, in my opinion,” Kociper attacked Zobed in the continuation of the session. She was most shocked by Zobec’s statement that Masleša might be an illegally appointed judge, as that would mean that all of his verdicts would be rebuttable and that a procedure for reviewing constitutionality should be initiated. In her opinion, this would lead to far too many proceedings, as Masleša was, of course, involved in a large number of cases. “This is the first time I have ever heard about a case law according to which state legal exams obtained in the countries of former Yugoslavia at a time when we were still a common state, not being valid. This is the first time I have heard about that,” she admitted and then asked if that also applies to all technical professions, such as engineers. “What happened today is that you have put so many proceedings under question, I hope you are aware of what you are doing,” she reiterated, adding: “And now we are wondering about a forty-year-long career of someone who was appointed to office as eligible at least twice. Are you kidding?” The MP also mentioned former Judge Radonjić several times during the session, against whom she apparently harbours some resentments – and at the same time, she was also critical of targeting people who were not present at the session. Quite a typical move for a representative of the Social Democrats party (SD), but apparently, the Party of Alenka Bratušek (SAB) also has double standards. Kociper then left the meeting.
Sara Bertoncelj
