Members of the European parliament Romana Tomc, Milan Zver and Franc Bogovič briefed several European institutions on the developments connected to the national media outlet Radio-Television Slovenia (RTVS) and the Constitutional Court of the Republic of Slovenia. They specifically highlighted the Court’s recent ruling, in which the judges, by a vote of four to one, overturned the Court’s previous decision on the temporary partial suspension of the amendment to the Radio-Television Slovenia Act. They also highlighted the dissenting opinion of Judge Svetlič, which testifies to the scandalous interference of politics in the work of the Court and the politically motivated and unconstitutional decisions of some judges. They also stressed that the decision violated the constitutional rights of those who had initiated the constitutional review of the act in question (members of the Programme Council of RTV Slovenia and others). The signatories of the letter sent it to: the President of the European Commission, Ursula von der Leyen; the President of the European Parliament, Roberta Metsola; the President of the European Council, Charles Michel; the Vice-President of the European Commission and European Commissioner for Values and Transparency, Věra Jourová; the European Commissioner for Justice, Didier Reynders; and the Commissioner for Human Rights at the Council of Europe, Dunja Mijatović. In their letter, the MEPs called on the European authorities to launch an investigation into the situation and to address the concerns in the next European Commission report on the rule of law.
MEP Romana Tomc was the first to draw attention to the revival and glorification of communist ideology and symbols in Slovenia, at a recent plenary session of the European Parliament in Brussels. She informed the MEPs of the recent reprehensible act of the Slovenian government, which abolished the National Day of Remembrance for the Victims of Communism on the 16th of May this year. She took the opportunity to call on the European Parliament, as the bastion of European values, to condemn in the strongest possible terms the revival of communism and the denial of the horrors that this totalitarianism has caused. Apparently, Europe has come to its senses and realised that something extremely strange is happening in Slovenia, and the European People’s Party (EPP), at Tomc’s initiative, in one of the strongest criticisms of the Slovenian government to date, will demand a debate in the European Parliament on the glorification of totalitarianism in Slovenia.
This was followed by a letter from the three aforementioned Slovenian MEPs, with Tomc as the first signatory, on how the government is extending its totalitarian modus operandi to its influence over the Constitutional Court, through which it has (apparently successfully) managed to subjugate the public media outlet RTV Slovenia. We are publishing the letter in its entirety below:
We, the undersigned Members of the European Parliament, wish to draw your attention to the recent decision of the Constitutional Court of the Republic of Slovenia. By a vote of four to one, the Court overturned the decision to temporarily suspend the amendment to the Radio-Television Slovenia Act. We also want to highlight the dissenting opinion of one Constitutional Court Judge, who warns of worrying political interference in the work of the Court and the imposition of an unconstitutional, arbitrary and politically motivated measure by some judges. This decision violates the constitutional rights of the petitioners who submitted the law for constitutional review, in particular, the members of the current Programme Council of RTV Slovenia. The proposed amendment to the RTV Slovenia Act, proposed by the current Slovenian government led by Robert Golob, would fundamentally change the structure of the RTV Slovenia Programme Council of the Slovenian national broadcaster Radio-Television Slovenia. This change would give the ruling party and its proxies unchecked ideological control over the public broadcaster and its programming and content.
Several prominent Slovenian legal experts have labelled the law unconstitutional, and its constitutionality is currently under review by the Constitutional Court of the Republic of Slovenia. Due to the seriousness of the found unconstitutionality, the Constitutional Court suspended the law in February 2023 pending a final decision, as the law would have terminated the mandates of the promoters of the constitutional review (members of the Programme Council) immediately after its entry into force. Since February, the judges of the Constitutional Court have faced severe political pressure from the current government and the members of the ruling coalition to “make the right decision”. Unfortunately, this pressure has led to an unprecedented legally confused decision which lifted the suspension and enforced the law without the judges making a final decision on its constitutionality. The Court argued that it was at an impasse and could not make a decisive ruling, which led it to annul the suspension of the law, which led to the termination of the mandates of the current members of the RTV Slovenia Programme Council.
Today, the dissenting opinion of the Constitutional Court Judge sheds light on the whole case. It reveals that the ruling was based on false information and that individual Constitutional Court judges orchestrated a complex scheme to steer the proceedings in such a way as to allow a blatantly unconstitutional law to come into force. The allegations made by the Constitutional Court Judge in question warrant a thorough investigation by the EU institutions and the international community. If these allegations are true, they undermine not only the fundamental principles of the rule of law, but also the principles of democracy. According to Constitutional Court Judge Rok Svetlič, the main reason for the decision to lift the suspension is the erroneous claim that obtaining five votes for a substantive decision was not achievable with the current composition of the Court. Just three days before the decision, one version of the draft compromise had received the support of five judges, while another version had even received the support of six judges. These two versions were still pending on the day of the vote.
Despite the absence of one judge, there was a curious view that all versions of the compromise were impossible to implement and that further pursuit of a substantive solution was pointless. One judge, with unwavering determination to lift the suspension, demanded an immediate vote on lifting the suspension. There was no debate before the vote, and the rapporteur did not present the draft decision on which the judges were ruling. The vote was taken abruptly. As a result, in accordance with the Rules of Procedure of the Constitutional Court, Constitutional Court Judge Rok Svetlič requested that the following text be included in the minutes of the Constitutional Court, which he read out before the decision was taken: “Before the vote, Constitutional Court Judge Rok Svetlič would like to remind my esteemed colleagues of the following:
- The Constitution, the Constitutional Court Act or any other law does not provide a basis for such a decision. Nor has there ever been a settled judgment of the Constitutional Court that would allow it. While there has been a single case of lifting a temporary suspension in favour of the petitioners, in countless other cases of temporary suspensions, the Constitutional Court has not been able to intervene formally. This shows the contradiction of the Constitutional Court’s established rulings – that interference with a decision on a temporary suspension is not permissible.
- By annulling the suspension, the Constitutional Court is denying the petitioners, whose mandate has expired by law, judicial protection, which is a constitutional right.
- By annulling the temporary suspension at this stage of the proceedings, the Constitutional Court has infringed the petitioners’ right to be heard, which is a constitutional right.
- It is the function of the judicial branch of government to control and limit the executive and legislative branches of government.”
Despite this request, the vote continued. Immediately after the vote on the decision, the Constitutional Court made the news public, which is very different from its usual practice. This haste prevented the simultaneous publication of the dissenting opinions, which form an integral part of the Constitutional Court’s communication. The judges also did not have sufficient time to reflect, including on the possible annulment of the decision. The dissenting opinions serve primarily as an invitation to the remaining judges to reconsider the arguments of the minority judge. Following the publication of the decision of the four Constitutional Court judges who overturned the decision taken by five Constitutional Court judges in February to postpone political changes in the entire leadership of RTV Slovenia pending a review of the constitutionality of the changes, four of the judges hurried to disregard the arguments of the dissenting judges in the dissenting opinion. Moreover, Judge Svetlič points out that the appellants’ right to judicial protection has been seriously violated. Their mandates were terminated without an individual decision, thus depriving them of the possibility of seeking redress before the ordinary courts.
Moreover, the contested amendment to the RTV Slovenia Act does not provide for any legal remedies. The petitioners had no judicial remedies other than the limited protection available before the Constitutional Court. By adopting this decision, they were deprived of the judicial protection guaranteed by the Constitution. Moreover, in his opinion, Judge Svetlič highlights the political pressures that the judges have faced since the beginning of ruling on this act. Just before the session of the 15th of February 2023, the government proposed a postponed public hearing to allow the finalisation of the new broadcasting bodies in the coming days, thus avoiding the possible temporary suspension previously imposed by the Constitutional Court. This manoeuvre would achieve the same result as lifting the suspension. In addition, both the government and the National Assembly have engaged in a tactic of judicial exclusion that has never happened before. A number of aggressive and insulting statements have been made about the Constitutional Court, and assurances have been given that the authorities will achieve their objectives by any means necessary.
The toxic effect of such an attitude towards the Constitutional Court was evidenced by the celebration of some pro-government employees of RTV Slovenia when the suspension was lifted. Public speeches expressed elation at having “won” a difficult “battle” and gratitude to all those who had “helped” them achieve this victory. Such rhetoric is very worrying. They were celebrating the enactment of a law whose constitutionality has not been established yet and may never be established, since the judges are, as they claim, perpetually at an impasse. How can anyone overlook the fact that judicial decisions are not a “fight”, and one party’s success is not the same as a “victory”? It is not about anyone winning, but about the erosion of democratic institutions, concludes Svetlič in his letter. The Constitutional Court Judge’s allegations are grave and clearly point to the politicisation of the highest levels of the judicial branch of power and the blatant infiltration of the executive branch of power into judicial affairs. We are deeply concerned that these fundamental principles of the rule of law are under serious threat in Slovenia. We call on the European authorities to launch a thorough investigation into the Slovenian branches of power, both executive and judiciary, and to address these concerns in the next edition of the European Commission’s Rule of Law Report.
Respectfully,
Member of the European Parliament Romana Tomc,
Member of the European Parliament Dr Milan Zver,
Member of the European Parliament Franc Bogovič
