We will slowly have to face the fact that in Slovenia, even the top of the judiciary is completely caught in the tentacles of the left-wing deep state. That is why we have started to receive completely predictable judgments from the Constitutional Court, where we know in advance, given the political connotations of the process, which political-legal activists on the court will bring a majority in favour of the left – the favourable opinion. That is why we already know the outcomes of politically charged trials in advance: the former management of the national media outlet, Radio-Television Slovenia (RTV Slovenia), lost against Golob’s autocratic government, FIDES – the trade union of doctors and dentists will also lose against the government, and Janez Janša will lose against anyone. Even in the case of the “prostitute,” it was known in advance how the case would turn out.
As we have already reported, the Constitutional Court overturned the Supreme Court’s ruling that had previously annulled the compensation awarded to Mojca Šetinc Pašek by the Higher Court for a tweet by Janez Janša that allegedly insulted her and another journalist, Evgenija Carl. The Supreme Court did not take sufficient account of the “particularly offensive language used when talking about the journalist”, legal activists at the Constitutional Court have argued. As always, they were faced with the truth by Constitutional Court judge Klemen Jaklič, one of the few shouting voices in the desert of Slovenian justice.
Jaklič began by noting that the case of freedom of expression has been considered countless times in comparative constitutional jurisprudence. However, from the point of view of constitutional law and confidence in the courts, it is crucial that this issue, however it is decided in similar cases, is decided in a similar manner in accordance with the consistent doctrine of the constitutional judge, and not in a different manner every time – for example, differently depending on who is the subject and who is the object of metaphorical provocative expression in a particular case. In this way, Jaklič implied between the lines that for some judges, it was very important who was being judged and, even more than that – to which political denomination the politician being judged belongs.
Jaklič pointed out that he could not support the court’s decision because it is clearly inconsistent with other decisions of this court on the same category of freedom of expression and thus with his own emerging constitutional jurisprudence doctrine, citing the 2018 case of “Sašo Hribar” as a comparable trial.
The hypocrisy of constitutional judges exposed in the Hribar case
At that time, the same Constitutional Court had already ruled on whether provocative metaphorical expression as criticism of the actions of an RTV Slovenia employee was constitutionally protected. And then it ruled in favour of Sašo Hribar, who in several public interviews had described his superior at RTV (editor Peter Radović) as a “turbo anus” and a less developed human being or “homo erectus”. Hribar was convinced that the editor in charge of the entertainment programme on RTV Slovenia was not acting in accordance with the highest professional journalistic standards because he was flirting with censorship of his metaphorical expression in the programme.
Back then, in 2018, the Constitutional Court – together with Jaklič – found that freedom of expression was at stake.
Namely, Jaklič argues that metaphorical expression should indeed be understood metaphorically and not forcibly transformed into non-metaphorical or literal expression. Hribar did not, of course, mean to convey to the public the literal meaning of his words, that his superior was a “large asshole” or the “less evolved type of human being”, as the ordinary courts have interpreted it, but he used metaphors to convey the message that, in his opinion, he was a journalist-editor who was not upright enough to be able to keep up with the high and at the same time demanding standards of journalism that the structure of a free democratic society requires of a journalist in public service broadcaster. At the time, the Constitutional Court made the same finding.
The case of the “pimp Milan’s discarded prostitutes” also involves the same metaphorical expression – here, it is absolutely clear that the person who used the expression did not intend to convey to the public that they are prostitutes from an actual public house, offering sexual services for money, and the business being organised by a certain pimp called Milan.
You can apparently use provocative metaphorical labels such as “turbo anus” and “homo erectus” in the context of criticising a piece of journalism, but you cannot use the same kind of metaphorical labels, such as “discarded prostitutes” and “pimp Milan.” This is not a constitutional doctrine.
Jaklič believes that the entire Slovenian public knows that, identically to the Hribar case, this is a critic’s personal assessment of the work of two important women journalists who, in his own opinion, are incapable of following the high and at the same time demanding standards of journalism that the structure of a free democratic society requires of a journalist in public service broadcasting, often acting at the dictates of informal centres of power outside of the public service broadcasting. Both Hribar and Janša, in their roles as subjects of expression in both their cases, express the same thing – a violation of their standards of work for a free democratic society on public television, as best understood by themselves. The Constitutional Court’s decision (in favour of freedom of speech in the Hribar case and against freedom of speech in the Janša case) thus does not seem to him to be consistent.
Hribar was defended by the Constitutional Court, which also referred to the European Court of Human Rights
Jaklič also highlighted the aspect of protection of the provocativeness and harshness of criticism of exposed personalities in relation to their public work, citing the Constitutional Court’s decision in the Hribar case, which referred to Article 39 of the Constitution on freedom of speech, which states that everyone may freely collect, receive, and disseminate information and opinions. At the time, the Court emphasised that freedom of expression protects not only the dissemination of favourably received opinions, but also covers critical and harsh statements.
If the debate is to be truly free, the right of individuals to express their opinions must, as a general rule, be protected, whether the statement is crude or neutral, rational or emotionally charged, mild or offensive, useful or harmful, right or wrong. In this respect, the Constitutional Court also refers to judgments of the European Court of Human Rights, which came to similar conclusions.
Both the Janša and Hribar cases dealt with criticism of the work of journalists at the national broadcaster, which is defined by law as a public institution of special cultural and national importance. And yet – as Jaklič notes – the Constitutional Court rules one way one time and another the next.
Inconsistency of judgements has a severe self-censoring effect
What do such inconsistent decisions actually mean for constitutional law and what for the life of a democratic community and the legitimacy of the Constitutional Court, Jaklič wondered. He believes that by ruling inconsistently, the Constitutional Court always prevents the development of constitutional doctrine and, thus, the establishment of the backbone of a predictable legal order in the country. In doing so, it also erodes a central safeguard for ensuring the independence of the administration of justice, which can only be tangibly observed and, at the same time, convincingly demonstrated to the addressees of the law if there is a consistently predictable doctrine.
Instead of a predictable and independent constitutional law, the addressees of the constitutional norms (all future subjects of criticism on the publicly important subject of independent and upright journalism) are told that there is no a priori standard of protection for their metaphorical expressions of criticism, which means that such an inconsistent decision also has a severe self-censoring effect against freedom of expression in practice (chilling effect), which is destructive for democracy. The disintegration of a consistent doctrine further undermines the whole level of the benefits of the rule of law and a free democratic society, in an environment where they have not even managed to flourish to a satisfactory extent yet.
And even more than the question of the constitutional standard of protection in the case of the category of provocative metaphorical expression, this decision adds to the constitutional law inconsistency of the Constitutional Court, Jaklič concluded.
I. K.
