Modern Centre Party (Stranka modernega centra – SMC) MP Jasna Murgel announced the following on the social network Facebook in 2015: “We will replace the Constitutional Court judges.” And her statement turned out to be prophetic, as since then, some candidates who were to the liking of the left actually took the positions of Constitutional Court judges, and with their actions and scandals, they continue to ruin the reputation of the once highly respected institution to this day.
Due to great disappointment over the outcome of the referendum on the amendment to the Marriage and Family Relations Act, which was rejected by the voters, SMC MP Jasna Murgel stated in 2015 that they would replace the Constitutional Court judges. She saw this as an opportunity to circumvent the will of the voters, which was clearly expressed in the referendum.
With her statement, Murgel responded to the opinion of a citizen, who was quite angry with the Constitutional Court for rejecting the referendum on the amendment to the act and praised the work of the SMC deputies in the campaign for a new Family Code. In her response, Murgel wrote that she does not feel responsible for the overall result and announced that they would “continue to work, as one year passes quickly. In the meantime, we will change Constitutional Court judges.” She went on to say that she is a warrior and promised the voters new victories. What actually won were cheap political moves, and the destruction of the Constitutional Court began, and with it the disintegration of the rule of law, which was provided by the Constitutional Court, as the last defender alongside the disabled Slovenian institutions and courts. As we will see below, this has been dismantled by the political staffing of poorly trained legal professionals.
These are the least professionally qualified judges in the history of the Constitutional Court
At the age of 40, Špelca Mežnar barely met the formal conditions for election to the position of Constitutional Court judge. At the end of October 2016, as the youngest Constitutional Court judge, Mežnar replaced Miroslav Mozetič at the Constitutional Court. After graduating, Mežnar began working in the Čeferin law firm, the founder of which is Rok Čeferin’s father – and Rok also became a Constitutional Court judge later.
On the 22nd of March 2017, four new Constitutional Court judges were appointed, namely Marijan Pavčnik, Matej Accetto, Klemen Jaklič and Rajko Knez. And on the 18th of June 2019, Rok Čeferin was also appointed to the position. At the time of his appointment, doubts were expressed by the then-leader of the SMC deputies, Igor Zorčič, and the leader of the DeSUS deputies, Franc Jurša. They highlighted some public controversies over the influence of the Čeferin law firm. “Such issues are not insignificant, and there are mechanisms in place that ensure impartial decision-making,” Zorčič said. Jurša explained that the DeSUS deputies have each formed their own opinion on the matter, which guided them in their decision on how to vote. The largest opposition party at the time, SDS, said that Čeferin’s past statements showed that his work in the Constitutional Court, where he should only be led by the Constitution, could jeopardise the foundations of the democratic system if he decided to reinterpret an article of the Constitution which refers to the freedom of expression. “Therefore, we could not support Čeferin,” Anja Bah Žibert said on behalf of the SDS MPs at the time.
The Constitutional Court judges’ affairs have undermined the reputation of what was once the most trusted institution
The appointment of Mežnar, Accetto and Čeferin turned out to actually be problematic and, according to some experts, it continues to undermine the reputation of the Constitutional Court. For example, Accetto was burdened by the affair of participating in the creation of the SMC party programme, which was still under the auspices of Miro Cerar at the time. The initiator of the referendum on the second track, Vili Kovačič, demanded that Accetto be excluded from deciding on the referendum on the second track, as he worked with the political leadership of the SMC party in the creation of the party’s political programme.
Judge Accetto then stated that he did not participate in the creation of the SMC party’s programme and that therefore, there was no reason to exclude him, so the judges did not do it. But Accetto, according to Jaklič, was not telling the truth. “And he knew that he was not telling the truth. He was very much involved in the creation of the SMC party programme,” Jaklič said. Correspondence between Accetto and the prominent SMC members, published by Požareport, confirmed Jaklič’s words that Accetto provided fairly extensive and detailed written proposals for the content and reflections in the process of creating the party’s programme.
Constitutional lawyer Jurij Toplak, Ph.D., also linked Accetto to the possible crime of illegal, biased and unfair judging. In his letter to the media, Toplak wrote: “Before initiating criminal proceedings for a criminal offence under Article 288 of the Criminal Code and inviting all others who feel wronged to join me, I ask the Constitutional Court for a list of all reference numbers in cases where Matej Accetto was the rapporteur, as well as copies of the first pages of unpublished orders where Accetto was among the judges.” Toplak was also critical of Constitutional Court Judge Mežnar. He accused her of failing to recognise violations of the Constitution in as many as 91 percent of cases. “Judge Špelca Mežnar, who does not recognise a violation of the Constitution even when others see it, is another reason to be worried. When there was no consent, in 91 percent of cases, she voted in favour of rejecting the Constitutional complaint,” he explained.
In a dissenting opinion of the published decision, which annulled part of the disputed article of the Foreigners Act, the holder of two law doctorates, Klemen Jaklič, also pointed out, among other things, the “inadmissible” pressures he had to face due to his divergent position in this case, as he was pushed to change his opinion. “I was even being pressured outside the formal court sessions; I was shown various substantive parts from a separate opinion /…/, and it was suggested to me that I should change my opinion,” Jaklič wrote. However, even when he rejected the pressures, things did not end, he stated.
And despite all of the accusations, Accetto still remains a Constitutional Court judge, and after the revelation of the scandals he was involved in, both Accetto and the President of the Constitutional Court, Rajko Knez, fell silent.
After the Accetto affair came the Čeferin affair
Recently, we also found out about the affair of Rok Čeferin, who accidentally participated in the correspondence decision-making process in a case in which he should have been excluded for other reasons. Čeferin suggested that the mistake be corrected by deciding on the matter again, this time without his participation, the Constitutional Court explained to us. As the media later revealed, however, this was not his only mistake, as in another case, he ruled twice in the case of citizen Peter Kodrič and found himself in a conflict of interest. The mistake was discovered when Kodrič’s case was sent to the European Court of Human Rights.
Due to the harsh response of the public, the Constitutional Court of the Republic of Slovenia announced that an error and a mistake had been made. “A judge who does not read the case files should not judge!” Toplak made it clear. And Matej Avbelj, professor of law, emphasised that it is human to err, but he expects the Constitutional Court to accept full responsibility for the violation of the Constitution, as well as a public apology and internal measures in order to prevent such a thing from happening again.
However, as one of our journalists discovered, it seems that another serious professional error happened to Constitutional Court judge Čeferin. On the 17th of February 2020, Čeferin was deciding on a case with his fellow judges Matej Accetto, Ph.D., Dunja Jadek Pensa, Ph.D., Špelca Mežnar, Ph.D., Marijan Pavčnik, Ph.D., Marko Šorli and the President of the Constitutional Court, Rajko Knez, Ph.D. They unanimously rejected the initiative of Marjan Arman. He sued RTV Slovenia for the amount of 750 euros, as the Court explained to us. However, the problem arose for Čeferin because one of the parties in the proceedings was RTV Slovenia, which has been sending monthly flat rates to the Law Firm Čeferin, Pogačnik, Novak, Koščak and partners most months since 2015. According to official data, Čeferin still owns 21 percent of the law firm, which, of course, puts him in a conflict of interest.
Constitutional lawyer Matej Avbelj believes that there are two worlds at the Constitutional Court
“Law should also be an expression of good faith and honesty and, clearly, common sense. Since all of this is not predominant in the Slovenian legal profession, it does not exist in law either. That is how it is and how it will remain with the existing socialisation structure and the power machine. It is not about the right or the left. It is about a lot more than that. It is about humanity and justice. In ourselves,” Avbelj wrote on the meaning of the law. He explained that our Constitutional Court is a prime example of how we actually have to deal with two worlds – both in the Constitutional Court, as well as in the Slovenian legal community.
“The first, the one which is still convincing to the majority, 7:2, both in the Constitutional Court and beyond, is strictly committed to legal positivism. The law is the law. Respecting it is an end in itself,” he explained in the newspaper Finance. He notes that the constitutional spectrum and the related protection of fundamental human rights and freedom are often outside of the legal scope in this approach to law. “Principles such as favour of justice, hominum causa omne ius constitum est – law is the function of man, and not the other way around, the legal system serving to respect the human rights of specific people, and not the protection of oneself and the state, are foreign to a legal system like this.”
The new Constitutional Court judges are very divided
According to Toplak, the new Constitutional Court judges are very divided. But not to the left and the right, as many might think. Similarly to the European judges, they are divided into those who feel closer to the state and the restriction of rights and those who feel sympathy for those who are victims of the state interfering in their rights. The vast majority of matters have nothing to do with the left-right division.