Although we have known this for quite some time, Tuesday brought further confirmation – the Constitutional Court of the Republic of Slovenia no longer exists, as it has instead become a machine for the official stamping of the ideology of left-wing politics. Left-wing activism has taken over the last stronghold of Slovenian democracy, which in the past, even in socially crazy times, was able to make professional, non-political, and rational judgements. Namely, on Tuesday, Constitutional Court Judges Špelca Mežnar and Neža Kogovšek gave a kind of unofficial dissenting opinion to their friends in the media about their judicial colleague Klemen Jaklič’s sole proprietorship, demonising not only him, but also the whole of Slovenian entrepreneurship, using expressions that are more suitable for a bar than for the highest judicial instance.
In her personal opinion, Špelca Mežnar made it seem as if she does not understand how entrepreneurship works and where the dividing line is between profit and non-profit activity. First, she stated ad hoc that the status of a sole proprietor is incompatible with the office of a Constitutional Court judge (although there is no mention of the legal-organisational form of work in the law), and then (bizarrely) she made a logical leap and referred to the Companies Act (ZGD-1), which has nothing to do with the matter at all. According to her, the status of a sole proprietorship is incompatible with the office of a Constitutional Court judge because (hold on to your seats!) “it makes it impossible to control what activities the judge carries out, with whom, and to what extent.”
Mežnar also argued that other forms of work allow for verifiability, transparency and traceability in the permitted extra-judicial activities of judges. This is, of course, not true! In any other legal-organisational form of work, a judge can write anything in the copyright contract, and nobody will check it – not the Financial Administration of the Republic of Slovenia (FURS) and not the Constitutional Court (why the Constitutional Court would check it is not entirely clear, but it seems that Mežnar feels that the Constitutional Court should become some kind of alternative supervisory body to the Financial Administration).
She therefore finds the entrepreneurial activity unacceptable “because it is freely incompatible with the function of a regular and Constitutional Court.” She obviously does not quite understand that other legal-organisational forms of work are also “free” in the same sense, although she seems to see them as a kind of parastatal sole proprietorships, where the state conducts an all-encompassing Stalinist control that takes away the component of the demonised “free enterprise.” There is no difference in the “corruption risk” she postulates. Her whole argument seems to rest on a misunderstanding of entrepreneurship, the control function of the state (which she thinks is greater than it is), and corruption risks.
Neža Kogovšek wants to bypass the law when deciding what is right and what is wrong
However, Constitutional Court Judge Neža Kogovšek Šalamon then said something even more horrifying: “You have to be able to interpret the rules, not just read them literally and look for holes in them.” She accused Judge Jaklič, between the lines, of undermining the integrity, reputation and impartiality of the Constitutional Court.
According to her, a Constitutional Court Judge is only allowed to carry out academic work in addition to his or her work in the office of a judge, but only on the basis of a copyright contract, a work contract, or on the basis of supplementary work that falls within the scope of Article 147 of the Labour Relations Act, she wrote. This is based on the dictum that, under Article 16 of the Constitutional Court Act, a Constitutional Court Judge may not, in addition to his or her office, indisputably pursue any other profession or gainful activity.
The problem is that this is only a statement. An assertion. The personal opinion of a woman called Neža Kogovšek Šalamon, who used to be the director of the far-left Peace Institute (Mirovni inštitut). Mežnar at least said that her failed attempt to implement the Companies Act was a “personal opinion,” but Kogovšek went further and said that it is already clear from the current law that a judge cannot engage in profit-making activity. Her logic says that because he cannot engage in a profit-making activity, this, in itself, means that he or she cannot be a sole proprietor – but that is precisely why the law provides for an EXCEPTION, without specifying the legal-organisational form of work.
Kogovšek is therefore playing the same game as the national media outlet, Radio-Television Slovenia (RTVS), where she would like to simply ignore part of the article, while also not realising that both copyright and work contracts are still types of free enterprise – in the days when the state did not overburden copyright contracts, this type of contract was even more popular among entrepreneurs than the other type of contract. Kogovšek, in her pogrom against Jaklič, forgot that if any kind of gainful activity is banned (to put it simply, if we ban any activity where someone earns something), then copyright contracts are also controversial, not to mention Constitutional Court Judge Čeferin’s limited liability companies.
But the scariest part of her statement is the part that says, “You have to be able to interpret the rules, not just read them literally and look for holes in them.” Do you understand what this means? It means that, regardless of whether you follow the letter of the law, the Putinist state will somehow be able to ensnare you in a legal noose and interpret the law ‘creatively’ in such a way that you will lose in a lawsuit. So, there is no legal certainty in such a state. In such a state, a creative interpretation of the Patria injunction would today have Janez Janša sitting in prison – like the Russian political prisoners. Are you willing to live in a country where political activists are the final arbiters of your freedom?
Mitja Iršič
