Constitutional Court Judge Jaklič was recently attacked by the media, first for his new house that he is currently building, and then when his sole proprietorship was “discovered”. However, in reporting on it, the media got caught in a trap. First, they had to admit that the Judge’s sole proprietorship is not incompatible with the law, but only incompatible with the spirit of the law. However, what the elusive spirit of the law thinks about the fact that Constitutional Court Judge Kogovšek Šalamon is (was?) partly employed at the Peace Institute (Mirovni inštitut), and that Constitutional Court Judge Čeferin owns 19.5 percent of the Law Firm Čeferin, has not been made clear by the media yet.
Article 16 of the Constitutional Court Act is clear. The office of a judge is incompatible with acquisitive activity, “except for the activity of a higher education teacher, a scientific worker or an employee in higher education.” Constitutional Court Judge Klemen Jaklič did not violate the law by keeping his sole proprietorship status open, as he had registered it for this very purpose. The gullible part of the public therefore needed a new clarification. And thus, we quickly learned from the legal clarifiers on duty that Jaklič’s sole proprietor status is incompatible with the spirit of the law.
Political commentator Žiga Turk soon realised that the manifested “spirit of the law” is nothing more than a socialist poltergeist, a kind of Yugoslav sediment haunting Slovenia. The spirit of the law can be bent and reinterpreted according to the needs of the authorities, but the letter of the law cannot. So, commenting on the matter, Turk wrote: “If we read the law in a socialist spirit, then Jaklič has violated the spirit of the law. It is as simple as that.”
Judges Kogovšek Šalamon and Čeferin in a “blind spot”
As always, there is a much more interesting story happening in the background that has not been touched by the judicial, media and political spin yet. Take the Čeferin case. Unlike Jaklič, who has a sole proprietorship registered for research activities, Constitutional Court Judge Rok Čeferin is actually guilty of acquisitiveness. Namely, he is the 19.5 percent owner of the Law Firm Čeferin and Partners.
The law firm in question recorded full-year revenues of 3.7 million euros and profits of 815 thousand euros in 2022 (data for 2023 will be available in the web application Ebonitete, which provides access to financial and business data of Slovenian business entities, in May). According to the ownership structure of the law firm, the Constitutional Court Judge was thus entitled to almost 159 thousand euros.
A significant part of the revenue of the law firm in question also comes from the taxpayers. In 2022, 561 thousand euros flowed from public institutions to the Čeferins’ account, compared to 673 thousand euros last year. In total, more than 12 million euros flowed from public sources into the law firm’s account, of which more than 1 million euros came from the Ljubljana municipality alone.
Owner of another limited liability company
Rok Čeferin, on the other hand, is also the full owner of the Civil Law Institute (Inštitut za civilno pravo, d.o.o.). This legal entity, although it bears the non-profit name of an institute, is, according to its business records, a genuine for-profit limited company, which has received almost 14 thousand euros of taxpayers’ money to date.
Constitutional Court Judge Špelca Mežnar told the media that she believes having a sole proprietorship is incompatible with the work of a Constitutional Court Judge. Why? Because it does not allow for verifiability, transparency, and traceability in the permitted extra-judicial activities of judges. “This is essential to protect judicial independence. A judge is not obliged to disclose his or her activities (except to the Financial Administration of the Republic of Slovenia – FURS). This means that the Constitutional Court cannot verify whether only permitted activities have been carried out in the context of a judge’s sole proprietorship,” she told the media outlet 24ur.
However, it is not entirely clear why a sole proprietorship is incompatible with the office of a Constitutional Court Judge, but owning two limited liability companies, as in the case of Judge Rok Čeferin, is not. In his case, the Constitutional Court also cannot verify whether the Judge is performing only the permitted activities. As a co-owner and proprietor of a company, he has possibilities for (also unauthorised) activities which cannot be verified with any greater efficiency than in the case of a judge with a sole proprietorship.
And the assessment of judicial independence in the case of Mežnar’s colleague Neža Kogovšek Šalamon is particularly strange.
A non-governmental activist dressed in a judicial robe
Judge Kogovšek Šalamon was (at least at the time of the court’s decision on the amendment to the Radio-Television Slovenia Act) also employed by the activist non-governmental organisation the Peace Institute. At one time, she was even the director of the said institute. This also resulted in her being excluded from the decision-making process in the case of the amendment to the Radio-Television Slovenia Act. On the website of the Legal Network for the Protection of Democracy – Pravna mreža za varstvo demokracije (another left-leaning activist organisation), one can read an explanation by former Constitutional Court judge Matevž Krivic on this topic, who says that “the judge is still partly employed by the Peace Institute, which participated in the group of NGOs that wrote the RTV Slovenia law.”
The Judge’s income from the NGO in question is currently unknown. Nor is it known whether she is still working with them. It is, however, inherently strange that a Constitutional Court Judge should come from activist circles. The phenomenon of activist judges was commented on some time ago on Radio Ognjišče by the former Constitutional Court judge Ernest Petrič, who said: “Whenever our Constitutional Court judges are elected, what disturbs me most is that someone is elected where it is clear in advance that he or she is a fighter for a specific cause. For the rights of these people or those people, for the rights of animals … Such a person does not belong in such a court.”
Žiga Korsika
