“Whichever system we touched on, we would find that our country is in a political freefall. If I used to criticise the fact that the dominant political groups want to maintain the status quo, I now find that this is no longer the case. Things are crumbling before our eyes.”
We talked to Dr Matej Avbelj about why a well-known legal activist refused to sit down with him, what the scandalous European Commission report says, what it means to be a real civil society, and where the national media outlet Radio Television Slovenia (RTVS) – and with it, the whole country – is heading under Golob’s rule.
Dr Avbelj, what is the real reason why the legal activist Dr Barbara Rajgelj was so irritated and angry with you? I am referring to the recent debate on the rule of law and the media, where the subject was the recent European Commission report on the state of the rule of law in Slovenia.
If I understood the video correctly, she was bothered by my use of the word “comradeship”. I was not using it in a pejorative sense, but as a label for a community of people who share the same interests and the same goals – which is what this community of people is. I was unpleasantly surprised, particularly by what Mrs Rajgelj said even before the event – that she did not want to sit with me, because something like that had never happened to me before. This is a bit reminiscent of the days of segregation and apartheid, and I am very concerned about that. Imagine the social reaction if I had said to the lady a priori that I did not want to sit with her.
Tell me, could we also be considered civil society?
Absolutely, if we understand the civil society in the sense of a well-functioning democracy, because civil society is that free space between individuals who care only about their private lives and politicians who govern public affairs and who fight for power. Between these two poles – between politics and individuals who are disinterested in public affairs – there is a huge space for civil society, which must be as plural, inclusive and independent of the state or any authorities as possible. And the more of this we have, the healthier our democratic society will be. What I wanted to point out at this event is that this is not the case in Slovenia. In Slovenia, civil society, as it has emerged over the last three decades, is understood in an extremely narrow way. It is certain groups of people – very influential, also well supported by the state, meaning the taxpayers’ money – and all these groups openly own the power to decide on public affairs before the elected politicians. We are moving, as it were, from representative democracy, from the people electing MPs in elections, to a kind of corporatist model of democracy, where public affairs are decided by ordained ‘civil society’ circles. This is not what we have written into our Constitution, and it is certainly not the ideal we want to pursue.
But would we be considered activists?
Anyone can be a social activist; anyone can be a political activist.
Does that not have a pejorative connotation in our country?
Paradoxically, this issue has taken on a pejorative meaning in Slovenia. But if you look at the debates of the 1980s, both here and throughout Central Europe, the key thing then was the emergence of civil society – dissidents yearned for civil society, for a space between politics or the state and disinterested people. Because that does not exist in a totalitarian system, because such a system makes sure that there is no field of freedom where socially engaged citizens can stand up for what they think is right. And in Slovenia, we have not developed that, or we have developed it in a way where, in fact, civil society is largely a mimicry of this or that political party. In our case, this is used especially by the post-communist left.
We also have a problem with journalistic activists; they believe it is fine to call me a political activist, whereas most RTV journalists, for example, are considered independent.
And thus we come back to the problem with which we began our conversation – this is something reminiscent of segregation and apartheid, which means that in this society, we are not all equal, but some people are labelled automatically – some people are Janšaists, some people are fascists, sometimes people are communists – but these are labels that we want to use a priori to exclude people from the public debate so that we can have a monopoly over it. And that is why I went to the bar Pritličje where the debate about the European Commission’s rule of law report was held, to show that it is possible to do things differently and to discuss arguments. And if that irritates someone who is not all that used to it, it means that we just need to work more in this direction, because this is the only way to a healthy, normal society.
What is so controversial about page 25 of the aforementioned European Commission report?
On page 25, it explicitly states that, under the new government, the Republic of Slovenia has fully implemented the obligations or recommendations imposed on the country by the European Commission in its 2022 report. This means that whoever wrote this report has fully vindicated and put the icing on the cake to a certain political narrative and also a certain political agenda in relation to the national media outlet RTV. In doing so, the report glosses over the fact that the situation we are in has been brought about in a way that is extremely controversial in constitutional law, and the report only mentions that the Constitutional Court is still deciding on the matter. But despite this, Slovenia is supposed to have already met the requirements that the European Commission put forward last year. Imagine if the Constitutional Court decides that the case concerning Radio-Television Slovenia is unconstitutional, as I think it should. What would that mean for the European Commission? That the European Commission has approved something that I believe is contrary to European law? That is what bothers and worries me most as a lawyer. That is the controversial page 25. And what is even more controversial on that page: that the European Commission has come to this conclusion primarily because it has relied exclusively on the sources of one party. And it did so in an honest way – it relied on people who were activists in this matter and who, in the end, celebrated their victory, now also with this icing on the cake from Brussels.
Is this the “hypocritical mind” you refer to?
This may sound very provocative to the layman, but the hypocritical mind is an academic term taken from the sociology of science, the founder of which is Karl Mannheim. He was concerned with the question of why we are dealing in public with debates that do not fit reality – reality is one thing, and we insist on something else on an ideological level. And the hypocritical mind is about a purposeful lie, as opposed to a hypocritical mind that, for some partisan and political interest, wants to portray reality in a different way, in a way that better fits their own interest. And this is what Karl Mannheim called the “can’t mentality”, or hypocritical mind, which is one of two forms of ideological behaviour.
Are there other areas where this kind of behaviour occurs?
In Slovenia, we deal with a lot of this kind of behaviour, especially when it comes to media activity. And why is the media so important? I, as an individual, do not have direct access to public affairs. I understand and see them as they are presented to me by the media. That is why the media are an intermediary between the individual and the public. My personal feeling, and this is my epistemological worldview, and I am not saying that I am absolutely right, is that we have a big problem in Slovenia with distorting social reality – by not showing what is objectively out there, or by showing what is out there in a different way, and in this way, we are manipulating Slovenian citizens. That is why I said that we cannot have an honest democracy without an honest media. If we live in a country with distorted information, people’s preferences are also distorted. And if they are distorted, then elections are no longer free either, because they are not fair, because people are not really free to decide who to give their support to.
Is the European Court of Human Rights mentioned in the report?
No, that legal aspect of this complication is completely omitted. The only reference is to the opinion of Dr Ciril Ribičič, who has been heavily involved in this case on the side of the Legal Network for the Defence of Democracy (Pravna mreža za varstvo demokracije – a left-wing activist group) and has acted in a highly partisan manner in this case. The report thus quotes his view that the Constitutional Court, by implementing its first suspension of the Radio-Television Slovenia Act, has created legal uncertainty. This, again, can be used to further fuel the aforementioned political narrative. In my opinion, the European Commission has, unfortunately, completely failed the test here. And if it wants to maintain its credibility, it will have to make a marked change of methodology with regard to Slovenia and make sure that it does not only talk to those civil societies, universities and experts who have a distinctly one-sided political commitment – because otherwise, this is not a report on the rule of law, but an arbitrary political document that is damaging to the rule of law.
It is likely that Slovenian representatives in the European Commission are also politically one-sided and direct other foreign representatives accordingly …
This document is written by someone who knows Slovenian. It is written by a Slovenian official of the European Commission, and they work closely with Slovenian officials in the ministries. And this is where the problem arises that the European Commission, when it is assessing a country, is leaning on those who have an interest in presenting their country in a good light most of the time, while in another government, it was deliberately presented in a much worse light than it obviously was. There is a methodological problem here.
Speaking of RTV and the new leadership that is emerging, Dr Rosvita Pesek, who is also the presenter of the television show Odmevi (Echoes), among other things, recently said on the Delo newspaper’s podcast that “a certain elite has chosen exactly which civil societies will be represented on the institution’s council.” “There was no democracy,” she argued. She also had a gloomy view of the future of TV Slovenia, saying that it was lagging behind in its development. What do you think went wrong in this case?
I have not seen her statement. I am glad she said what she said, though. But it seems to me that she is too late. Only time will tell how the new RTVS Council will actually work. Let us give it a chance to prove itself. But the way in which the law was written, the way in which the civil society groups were legally defined – arbitrarily, without any criteria – the way in which specific individuals were then selected for the council, all of this confirms the scepticism that the esteemed Rosvita Pesek emphasised in her statement. As for the gloomy view of the RTV’s future, I think she knows best because she has been in this media house for a very long time and knows it to the core.
Pesek also said that the viewership or listenership of programmes on RTV Slovenia is important. Some of her colleagues disagree with her in meetings.
It is certainly important. But I think that this whole story of journalistic activism at RTV is, on the one hand, useful, because it has exposed what was previously sold as an independent institution – many people presented themselves as objective journalists, as the pinnacle of Slovenian journalistic professionalism, but it has turned out that this is unfortunately not true. If public service broadcasting wants to be a public service, it has an extremely difficult task ahead of it, and it seems unable to find any real motivation to establish what this television really needs.
What do you think public service means as far as the media are concerned?
Public service media is a concept that emerged in Europe after the Second World War to create a public space for debate. As I have said before, you cannot have a real democracy if you do not have a public space where politics, civil society groups, interest groups, and citizens can debate with each other in an inclusive, pluralistic, professional way, and in addition, public affairs are created through the public space. In the absence of this, Europe before the Second World War was easy prey for various extremist groups, which drove people to various extremes, which then led to major wars and genocidal acts. America does not have that, it does not have mass media, America has the market and the idea of a free exchange of ideas. Europe, on the other hand, has the idea of a public space where citizens are to be educated as active individuals who are to contribute to public affairs in the best way they can and know how to. And that education is the task of the public service, which means that public service broadcasting must be the most professional media in the country, as inclusive as possible, and as objective and impartial as possible. Once that is no longer true, once the public service media serves a particular political group or a particular interest group, as is happening here, and journalists see it as a kind of self-governing mechanism for protecting journalists’ trade union rights, then the essence of this public service has failed, and the institution no longer serves its purpose, that is, to create public discourse in the public sphere.
In light of this, Pesek criticised both Štefančič’s show Studio City and Pirkovič’s show Arena for being too narrowly focused on one thing.
As said before, public television should strive for dialogue between differently minded and capable people and force them to argue their positions as convincingly as possible in public. It should be public television that holds the level of public discourse. The private media, private television stations, can do what they want, because I, as a citizen, have the right to turn such media on or off. But if I, as a taxpayer, am given an obligation to fund a public service that is supposed to maintain a kind of republican, democratic dialogue in a constitutional democracy, and that service does not do that, then I no longer see any reason to pay for it. But once we no longer have a public service, then the civic identity also crumbles, and gradually the state itself begins to wither away. We are just left with different tribes verbally attacking each other, each from their own ideological point of view, and that is not how the state works. People get used to the fact that when someone who thinks differently comes along, they tell him in advance that they would not like to sit with him at all. And that is the poison that weighs on this democracy.
So, are we actually close to totalitarian ideas?
In political theory, this is not democracy, but an exclusionary Schmitt-like approach to democracy – namely, that anyone who does not agree with me completely is not my dialogical opponent, but my enemy. And we all know what to do with the enemy: in the first phase, we tolerate him, then we ignore him, and in the third phase, which we know very well in Slovenia, we discredit him and throw him into a pit. This is what we should consciously fight against in Slovenia, where we have a very rough historical experience.
In the debate on the rule of law that you mentioned, you also spoke about the so-called SLAPP lawsuits. According to Dr Rajgelj, they are again being filed only by actors that she does not like.
This is a major problem in some EU countries. Historically, it has been the state that has restricted freedom of expression because it has had the power to do so. But now we have cases where vested interests want to silence certain journalists who write unkindly about them. In some countries, this problem is much greater than in our country. My colleague has highlighted two such countries, and there are certainly others that could be highlighted. I am not particularly involved in this area myself; I just hear about this from the media from time to time. Anyway, the methodology here is, as I said at the beginning, if we want to have a full picture of a situation, we need to list all the cases in their entirety. You surely remember that, during the Janša Government, when there was a famous debate on the media and when the then-Prime Minister wanted to show a video of attacks on the media and on journalists, they did not want to hear about it at all.
And what do you think is the real progress in our justice system? We seem to have moved into the reign of a few select people, and this is especially obvious when we watch the footage of the highest representatives of the judiciary shaking hands and hugging the mayor of Ljubljana, Janković…
These are two questions. The first is about the hugging. In law and the rule of law, it is known that appearances matter – that the state and its highest political, let alone professional, representatives, such as the President of the Supreme Court, must strive to maintain an appearance of the utmost professionalism and integrity, rather than identification with certain individuals. An embrace contradicts this standard and creates the impression to the average observer that the government is aligned with a particular actor. This is, in my view, highly problematic and very damaging to the rule of law. And regarding the functioning of the courts, and this is not my opinion, but the facts, it is all written in the Annual Report on the Functioning of the Slovenian Courts for 2022: the number of cases received by the courts is decreasing, the number of cases resolved is decreasing, and the number of pending cases in the so-called important cases is increasing, which means that we are no longer in a phase of stagnation of the judicial system, but we have entered a phase of real decline. This is also demonstrated by the aforementioned European Commission report, which, incidentally, relies on what our Supreme Court produces, because it has nothing else. From a comparative perspective, this reveals a fact that should set all alarm bells ringing – and that is that corruption offences are hardly prosecuted in Slovenia, that the time taken to try corruption offences is among the longest in the European Union, and that Slovenia produces the fewest judicial epilogues in corruption cases.
And what does that mean?
It means that the judiciary, and with it the prosecution, is failing in its mission of authority in those cases that are most dangerous for society. If we commit an offence, we will be punished immediately, and we are very good at prosecuting people who break someone’s leg or hit their neighbour over the head with a spade. They condemn such offences immediately. But these are not socially dangerous acts, not something that degrades the state as such – but corruption offences do exactly that, as does the (non)prosecution of white-collar crime. This is where the Slovenian judiciary is failing. In all those cases that are important cases, and in all those cases that actually need to be tried, the Slovenian judiciary is not working and is not up to any standard of time. Read the 2022 report. It sets time standards within which the courts should rule on all matters. And none of these standards have been achieved. And for the current President of the Supreme Court to then say that the functioning of the judiciary is stable, for the President of the Supreme Court to say that the judiciary is in good hands, is a joke. The number of cases brought before the Court is decreasing. Why? Because citizens know that it is no longer worth going to the courts. We still have a thousand or more cases that are more than 10 years old.
Or are they time-barred?
A huge number of cases are also time-barred.
Time-barred on purpose …
I don’t know about that, but they are actually time-barred. Especially in the most dangerous forms of crime, where neither the Slovenian judiciary, nor the prosecutors and the police are performing the civic service they are in charge of.
What is your overall assessment of the situation in the country, of course, in light of the rule of Robert Golob?
Assuming that the pre-election promises were sincere, we can see that there is nothing left of that. It is strange that the content of this government is entirely dictated by the radical left political group, the Left party (Levica). This government has successfully done nothing more than an a priori annulment of what the previous government did, regardless of whether it made any sense or not. Meanwhile, it has done none of the things that this country really needs. We are objectively regressing in all systems. If we are talking about healthcare, for example, we do not even need to say anything, because the situation with the minister who has resigned confirms not only that nothing has changed for the better, but that we have thrown another 100 million euros at the system, and despite that, the wait times are even longer. Whichever system we touched on, we would find that our country is in a political freefall. If I used to criticise the fact that the dominant political groups want to maintain the status quo, I now find that this is no longer the case. Things are crumbling before our eyes.
Is this also why you decided to support the Logar Platform?
When I was asked to say something at the launch of this association, I said …
Anže Logar is, after all, a politician …
Absolutely. If we are going to be a democracy, we cannot improve things in the country in a non-political way. That is why we have democracy – democracy is based on political parties, which are the backbone of this political system, and the system works on the basis of political participation. I myself participate in it, and will continue to do so, within the work of the association. I have based my involvement on the foundation that, as we are also finding out through this conversation, we have reached a point where things cannot go on like this. We have seen the dismantling of all the key systems of the state, and I, with the knowledge that I have, want to contribute something through dialogue to this public space. What is very important to me in this platform is that a critical group, a mass of people, regardless of their worldview, should be formed that would be prepared to pull this Slovenian cart out of the mud. If we do not form this critical mass of people of different worldviews who are ready to mobilise for the common good, then there is no chance that the country will have a bright future.
The platform is likely to grow into a political party later on, right?
This is a question for Anže Logar. He will decide on that, but the association, as such, will remain. Its content will be dialogue, proposing solutions and creating the constructive civic spirit that every serious democracy needs.
Petra Janša, Demokracija
