Some time ago, we already wrote about how the President of the Ljubljana District Court, Marjan Pogačnik, went after the now-former District Court judge Zvjezdan Radonjić, and then we pointed out a few more cases of Pogačnik’s controversial behaviour. Among other things, we also reported on the fact that on the 4th of March, the Judicial Council found at its session that Marjan Pogačnik had issued an oral order to take away all of judge Ana Testen’s files. He then transferred her to the lower court in Kamnik, to work in a completely different field of law from the one she previously worked in and also ordered her to cancel all the main hearings that she had already scheduled. It is interesting to note that because of this order, the second senate also decided on the appeal from Damijan Janković, which had previously already been rejected – but the new senate then made the exact opposite decision. Is this really just a coincidence? Many wise people say that there are no coincidences in Slovenia.
Some time ago, we wrote about how the Judicial Council, at its session on the 4th of March, established that the President of the District Court in Ljubljana, Marjan Pogačnik, had issued an oral order to the judge Ana Testen, confiscating all her files. He then also transferred her to a lower court to work in a completely different field of law from the one she previously worked in and also ordered her to cancel all the main hearings that she had already scheduled. The President of the Court thus violated the law and the constitution, as he unconstitutionally interfered with the judge’s independence, and in addition, he does not even have the legal basis for issuing oral orders. The immobility of judges is part of judicial independence, protected by Article 125 of the Constitution. This was, among other things, decided unanimously by the Judicial Council, following judge Testen’s appeal – however, despite such a serious violation made by the President of the Court, his dismissal was not demanded. In this particular case, the Judicial Council found that the President had violated point 2 of the first paragraph of Article 64 of the Courts Act, but nevertheless did not request that the President of the Ljubljana Higher Court prepare a report for the dismissal of the President of the Ljubljana District Court. In Pogačnik’s case, the Judicial Council of the Republic of Slovenia followed neither its own guidelines nor Article 64 of the Courts Act.
Without any explanation or justification, Pogačnik reassigned the District Court judge Ana Testen to the District Court in Kamnik, where, according to the Siol web portal, there was no catastrophic shortage of staff, which might have justified Pogačnik’s actions. The decision, in which the Judicial Council, chaired by the Supreme Court Judge Erik Kerševan, explained its decision, has been censored – and as the Siol editor-in-chief Peter Jančič has mentioned many times before, this often happens in courts, due to the unreasonable privacy law – if the document is ever even made public at all. They often try, especially in the lower courts, to prevent this from happening. However, our editorial board did receive information that the case was about Pogačnik and Testen, which was also confirmed by an article in the newspaper Večer. The journalist wrote that Pogačnik called judge Testen and the head of the criminal department of this court, judge Deja Kozjek, to his office in October 2020, due to an official note from police officer Rok M. from the Grosuplje Police Station. Namely, the police officer allegedly complained to Pogačnik that Testen had behaved inappropriately when he and his colleagues were conducting a house search – according to him, the judge was sitting in a nearby bar and commenting on and criticising the work of the police. But whether or not this was the real reason for the transfer of a judge to a different work position is an entirely separate story.
Pogačnik allegedly decided on the basis of the official note from the police officer that he must take swift action against the judge – the latter was not even given an opportunity to tell or clarify her side of the story. Pogačnik took all the cases away from Testen with an oral order and also ordered her to cancel the main hearings she had already scheduled. The Judicial Council then decided that Pogačnik must cancel her transfer to Kamnik. Last spring, Siol sent questions to the District Court, asking whether Pogačnik intended to rectify the violations. They received the following response: “Regarding the question you addressed to the District Court in Ljubljana on the 10th of March 2021, we can tell you that the President of the Court, Senior Judge Marjan Pogačnik, is acquainted with the content of the 11th resolution of the Council’s session, only on the basis of the minutes of the 59th session of the Judicial Council of the Republic of Slovenia of the 4th of March 2021, published in anonymised form, which brings the findings that you yourself mentioned in the question. The President of the Court expects the Judicial Council of the Republic of Slovenia to provide a substantive explanation of the adopted position, which may be the basis for possible further decisions. We would like to point out that according to the available information, an administrative dispute has been initiated before the Administrative Court regarding identical issues, and that the decision, once adopted, may represent a further direction or limit the powers of the President of the Court regarding the adoption of annual work schedules. In view of the above, and the fact that this is an anonymised record of the Judicial Council of the Republic of Slovenia and the adopted position, we cannot provide any further answers and explanations to your question at this time.”
The whole story contains an interesting concern about why Pogačnik actually moved Testen to a different position, especially as quickly as he did, and without an explanation. It was at that time that Damijan Janković‘s appeal had already been decided on – and the appeal was rejected. When the President of the District Court illegally took the case away from the judge, he handed it over to another senate, which then decided the exact opposite. It is said that someone other than Branko Masleša is to blame for this – as Masleša is allegedly characterised by “his appearance and his strong political profile and the way he appeared as the President of the Court, walking around courts, awakening fear in some judges, which probably also led to self-censorship.” Thus, the judges allegedly did not even have to be directly ordered to judge in favour of Janković – it is quite clear to those who are close to Masleša what kind of trials will make him like them. It is probably also worth mentioning that Janković allegedly made sure that Masleša’s son got the position of the head of the Hiša športa (the House of Sports), which falls under the Public Institution Šport Ljubljana (Sport Ljubljana). And for that, he certainly deserved a favour in return, did he not?
The public does not have the right to know how judges are deciding in the case of Janković
The investigation did not stop in April 2021, as the decision concerning the investigation of Janković’s disputed business was annulled. The second Judicial Council thus upheld the appeal lodged by Janković’s lawyer against the investigation. But even before judge rapporteur Testen was removed and replaced by Urška Zorko by the presiding judge of the court, Pogačnik, the Judicial Panel had already made the decision to reject Janković’s appeal because it is unfounded and the investigation into the crime of tax evasion, forgery, and destruction of documents related to business, should continue. According to unofficial information, the investigation was stopped with the replacement of judge rapporteur Testen. However, the court pointed out that the investigation, the decision of which had been annulled, might still continue. However, the question arises as to whether Janković’s trial was transparent and fair. The public did not have access to the decision granting Janković’s lawyer’s appeal against the decision on the investigation. The public also does not have access to the minutes of the decision of the Judicial Council, even from before Testen was expelled, where it was decided that Janković’s appeal would be rejected. The court explained that the public does not have the right to know how judges decide in the case of Janković’s investigation. These are supposed to be working materials, drafts, but the matter is not over yet. In addition, they stated that only the Court of Appeal could inspect the minutes.