The second item on the agenda of the 10th plenary session of the Constitutional Court was to consider the petition for a review of the constitutionality of the Act on Amendments and Additions to the Act on Radio-Television Slovenia, but the Constitutional Court judges did not adopt any decision at that time.
And while we are waiting for the final decision of the Constitutional Court, the government is already looking for a way out – if, of course, the Constitutional Court judges’ decision is not in their favour. The government coalition is therefore amending the Institutes Act, which has been in force since 1991, by an abbreviated (!) procedure. The amendment has only three articles, the purpose of which is to “reform the grounds for dismissal of the director and to regulate the appointment of the acting director of the institutes,” as the sponsors put it. Or to put it another way: the amendment to the Institutes Act thus allows the government to appoint a new Acting Director without a call for tenders, which means that they could still replace the Acting Director-General of RTV Slovenia, Andrej Grah Whatmough, even if the Court will still be deciding on the Radio-Television Slovenia Act for a long time to come. However, if the Constitutional Court were to return Grah Whatmough to his full mandate, the government could ask the Programme Council of the national media outlet to dismiss the Director. If the Council failed to do so, the government could dismiss him after eight days. However, the question arises whether the amendment would also apply to the Director of RTV Slovenia, since his appointment is governed by a special law on RTV Slovenia, which in principle overrides a general one such as the law on institutions.
A brief overview of recent developments
But let’s go back to the beginning and look at the key events that shaped the process of developments and decision-making on the amendment to the Radio-Television Slovenia Act. The amendment of the RTV Act was already at the forefront before last year’s parliamentary elections, as Robert Golob repeatedly stressed that if they won power, they would immediately tackle the law. And they did just that. A month after the Golob government was sworn in, on the 1st of July, the government coalition tabled a proposal for amendments to the Radio-Television Slovenia Act in the National Assembly, proposing an urgent procedure. Not even some reservations from the Legislative and Legal Service of the National Assembly stopped the Parliament from passing the bill, and the coalition voted the bill through. The referendum initiated by the Slovenian Democratic Party (Slovenska demokratska stranka – SDS) also did not stop the law, but the Constitutional Court suspended its implementation. This unfavourable decision for the government coalition came despite a visit by the Vice-President of the European Commission, Věra Jourová, to the Constitutional Court, which was perceived as her pressuring our judiciary by part of the public. It should be noted that during her visit, she met with predominantly left-leaning politicians and their supporters. During the term of the Janša government, she was one of the main tools of the left-wing opposition, its “civil society,” and the academic circles in the fight to bring down the former government and regain power. This is what made it all the more suspicious that Jourová visited the Constitutional Court at the very time when the RTV Act was being decided on, and that she also met with the Court’s President, Matej Accetto, who subsequently voted in favour of halting the implementation of the law.
The pressures kept coming
This was not the only pressure that the Constitutional Court judges experienced during their deliberations on the proposal. Media outlet Požareport revealed that the Speaker of the National Assembly, Urška Klakočar Zupančič, also intervened in the case. At the end of February, she asked the Constitutional Court for a new look at the file, while Prime Minister Golob repeatedly and publicly called on the Constitutional Court judges to come to a decision as soon as possible. It is well known what kind of decision he wants, and the government coalition has even proposed RTV employees as witnesses in the case to the Constitutional Court, who are in favour of the amendment. Moreover, representatives of the so-called civil organisation, the Legal Network for the Protection of Democracy (Pravna mreža za varstvo demokracije), have intervened in the work of the Court, claiming that the amendment of the law is “absolutely necessary.” The Constitutional Court, therefore, hurried things up and last week resumed its constitutional review of the RTV Act, but things got complicated. It was leaked that the Constitutional Court Judge Neža Kogovšek Šalamon is partly employed by the Peace Institute (Mirovni inštitut), which is part of the Legal Network for the Protection of Democracy, and that it was them who wrote the amendment to the RTV Act, which Prime Minister Golob himself revealed in an interview on RTV Slovenia. So, the alarm bells went off – how is it possible that Judge Neža Kogovšek Šalamon could even be deciding on the law when she herself wrote it? That is why the first signed petitioner for the constitutionality review and the President of the Programme Council of RTV, Peter Gregorčič, immediately submitted a motion to disqualify her from deciding on the case, “due to violation of the objective appearance of impartiality under Article 23 of the Constitution of the Republic of Slovenia.” Gregorčič said that if the Constitutional Court judges did not disqualify the Judge, this would certainly be condemned by the European Court of Human Rights, after consulting legal experts. Judge Kogovšek Šalamon was absent from Thursday’s hearing, but the Constitutional Court confirmed that she had the consent of her employer to carry out complementary work at the Peace Institute. If she recuses herself from the decision-making process, this will not be the only recusal. Judge Rok Čeferin has already been disqualified from the process, as the Čeferin Law Firm prepared a legal opinion for one of the parties to the proceedings. Neža Kogovšek Šalamon was the only judge who voted against Čeferin’s disqualification.
Waiting for the decision
In conclusion, eight judges are now ruling on the case, but according to unofficial information, they are divided in half. Unless the ratio of judges changes, the Court cannot take a decision, as a majority is required. In this case, the decision could be delayed for several years. The recent disqualification of Judge Neža Kogovšek Šalamon could mean that the scales are tipping in favour of those judges who consider the law to be unconstitutional.
Petra Janša
