The following is an interview with Prime Minister Janez Janša for the Polish news agency PAP. In the interview, the Prime Minister spoke about the situation in the judiciary, the fact that he was a political prisoner twice, the second time during democracy, the reform of judicial legislation, the need for self-reflection of the judiciary, respect for EU law and the future of the EU.
– Mr. Prime Minister, you have been criticized by some of the EU politicians for your comments regarding the situation of judiciary in your country. What is the essence of the problem with the judiciary in Slovenia?
My experience of the judiciary is different from that of many other European politicians who publicly criticise me for my statements but are not at all familiar with the situation in Slovenia. I have been a political prisoner twice, not only in a non-democratic regime, but also in 2014, in a democracy, when I was sent to prison by the Slovenian judiciary shortly before the parliamentary elections on the basis of a rigged political process on charges that, on an unknown date, in an unknown manner, at an unknown place, I influenced unknown persons and received an unknown promise of a financial reward. The Constitutional Court later unanimously annulled this rigged political process.
32 years ago when I was convicted by the military court and sent to prison, after I had been on hunger strike for a week, the Criminal Procedure Act and the Penal Code of the Socialist Federal Republic of Yugoslavia and of the Socialist Republic of Slovenia were brought to my solitary confinement cell. When I read the introduction to one of these laws, it stated, in short, that the judicial system was a tool of the Communist Party to implement its programme, and criminal law was a tool to destroy the class enemy. That criminal law is a tool to destroy the class enemy was not only written in the introduction to one of these laws, but this premise was also the basis for all the developments at the time in the former Yugoslavia and all its republics. This was how the communist regime dealt with its opponents and intimidated people. Thousands of people had their lives, families and careers destroyed and were displaced across the world. These were not miscarriages of justice – this was a system to destroy political opponents.
It must be acknowledged that, in the first years after independence, the Slovenian Constitutional Court did a great deal to transform, theoretically and de jure, the view of the role of criminal law and the judiciary in the one-party regime. Many wrongs that were done to groups and individuals, those who survived of course, were righted. At the time the Constitutional Court of the Republic of Slovenia did a great deal when it declared the former secret political police to be a criminal organisation and annulled a series of political processes. It seemed that Slovenia was becoming a country with de facto respect for the separation of powers and de facto fulfilment of the Copenhagen criteria for EU accession.
But then mass graves began to be uncovered. Over 700 mass graves have been discovered in Slovenia to date, with direct evidence that tens of thousands of people were killed after the war. The communist authorities hid these crimes from the eyes of the domestic and foreign public. Although people knew about them, they were scared to talk about it, not even among themselves, let alone in public. Fear has always been a tool of repression used by the former communist elite to maintain their privileges and rule. Despite the horrific facts and the hundreds of graves that have been discovered, where the remains of brutally murdered young and old people, men and women, even children, have lain for decades, not a single criminal has been prosecuted by the Slovenian judiciary and the prosecution service.
During the time of our independence efforts, the former Public Accounting Service filed over 700 criminal complaints for uncontrolled privatisation which was happening on a massive scale at that time. However, the Slovenian prosecution service and the judiciary did not put anyone behind bars, and even those who were sentenced were later pardoned by the president. And the ruling politicians at the time, the successors of the former communist authorities, simply abolished the Public Accounting Service. They found it disturbing and too efficient.
Somewhere in the middle of the transition period, things took a turn in the opposite direction from the promising beginnings of independence. As there was no lustration process, all judges from the previous regime, who grossly violated human rights, remained in the judiciary. Criminals who should be held accountable for their crimes are still at large. Many people are denied justice due to lengthy court proceedings.
Even though Slovenia is one of the EU member states with the most judges per capita, the judiciary enjoys a poor reputation and people’s trust in the judiciary is low. While elsewhere we can see judgements publicly delivered, it is illegal in Slovenia to take a photograph of a judge at hearing, the public does not have access to final judgements, judicial processes take years and the judiciary is full of red tape. One can hardly speak of impartial trials or of ensuring the appearance of impartiality of the Slovenian judiciary, when we see judges wearing clothes with totalitarian symbols, even if it is at parties, or openly sympathising with the ideology of the former regime.
I believe that it is my duty and responsibility to draw attention to unacceptable derogations from what a democratic state is obliged to guarantee its citizens. The rule of law, respect for human rights and fundamental freedoms and human dignity are the foundations of any democratic society. We can pretend that everything is fine. However, deviations in these areas will eventually lead to a situation where all the social and systemic anomalies and rights violations will come at a price. The longer we persist in a virtual world where everything seems fine, the higher the price to pay.
– Has there been “lustration” in the Slovenian judiciary after the fall of communism?
No. However, a new Judicial Service Act was adopted in 1994, which states that those who have violated human rights when performing their judicial duties under the previous regime cannot be appointed to a permanent office. The Judicial Council only abided by this act in one case. In all other cases, it stated that it was not aware of any infringement of this particular article of the act by the candidates they are proposing for permanent office. This was despite the fact that judgements or indictments to the contrary have been made public, books have been written about it and documentaries have been made.
– Does it still matter?
Of course. The main issue is that the transition has created a system of first- and second‑class citizens and a system protecting the privileges of the elites, in which, unfortunately, the judiciary plays an important part. Establishing equality before the law is an absolute must for the normal functioning of a democratic state. When certain individuals known to the Slovenian public and considered untouchable are treated the same as everyone else, the second‑class citizens, by the Slovenian police, the prosecution service and courts, we will be able to say that Slovenia has taken an important first step towards the rule of law.
I regret that some European politicians, rather than checking the state of judiciary in Slovenia by themselves, rely on manipulated information they receive. Unfortunately, the European Court of Human Rights found that the Slovenian judiciary committed many human rights violations and issued unjust judgements; some were even pointed out by the judges themselves, who were then prosecuted for it by this same judiciary. The second problem is the ideological continuity of the communist regime, which has been perpetuated in the judiciary through staffing up to the present day. The judges can therefore, for example, be photographed at party conventions wearing a totalitarian symbol of a red star and without even trying to maintain an appearance of impartiality. Until recently, a person (Branko Masleša) sitting at the very top of the judicial system (at the supreme court)was the last judge in communist Slovenia to impose a death sentence. In at least one case, this same man made sure that the fatal shooting of an Eastern European refugee was not prosecuted under criminal law. The Slovenian judiciary also has no problem nominating individuals who have never worked a day in the judiciary for top judicial posts. This is why it is hard to listen to people in the judiciary stating how they are hurt by criticism, when on the other hand, miscarriages of justice are more likely to result in people dying than people living to see their judgement being declared a miscarriage of justice. People’s families, careers and lives are destroyed because of such judicial system, and not only in the former SFRY but in the independent Republic of Slovenia as well.
– How would you like to reform the system?
The right to an independent tribunal is guaranteed both by the Slovenian Constitution and the EU Charter of Fundamental Rights, thus the respect for this universal procedural human right should not depend on the history or the social system of a particular country. It should be noted that this right is not an end to itself, rather it serves to effectively ensure two other procedural human rights, the right to trial without undue delay and the right to an effective judicial remedy. This means that the justification for protecting the formal independence of judges depends on whether the judiciary of a particular country itself is able to ensure the protection of these two rights. In accordance with the principle of subsidiarity, this may only be established by the relevant Member State conducting a comprehensive analysis of the functioning of the judiciary based on concrete examples. If the judiciary of the particular country is not able to ensure fundamental constitutional procedural guarantees, according to the Constitution, the legislator is even obliged to adopt suitable reforms to improve the functioning of the judiciary. Slovenian Constitutional Court follows the example of the German federal court, which admits that an absolute separation of powers does not exist and that the authority as a whole can only function if a system of checks and balances between individual branches of government exists, through which any branch may influence the other to an extent necessary to ensure an effective execution of its constitutional powers and to protect human freedom.
In the government’s coalition agreement, the reform of judicial legislation is defined as a priority of the current Slovenian government. The objective of the reform is to improve the operation and operational efficiency of the courts and judicial and court staff.
However, the judiciary reform cannot only be implemented at the legal, formal, executive and legislative level. First and foremost, the Slovenian judiciary should develop the capacity for serious reflection on the entire situation and for self-correction. It would boost confidence in the judiciary and its reputation if hearings were made public or would even be broadcast directly via internet. Making court registers public and ensuring that judges consistently assume the responsibility for their decisions would introduce transparency into the judiciary and enable the public to monitor its functioning. The judiciary should seriously examine the Slovak legislative package that reformed the Slovak judicial system and submit proposals in this regard. Slovenia’s challenges concerning the reform of the judicial system are quite similar to the Slovak experience.
– Is it a good idea to defend the formal independence od judges in the former communist countries – as the European Commission does – without examining thoroughly the situation? At the same time, the Commission doesn’t criticize e.g. Spain for pushing for the reform of the judiciary.
The generation to which I belong knows how life actually felt on the side of the Iron Curtain that was deprived of freedom. Most colleagues I talk to in the European Union were born in traditionally democratic countries, which is why they find it difficult to understand what this life was like. Thus, it takes quite a while for me to explain to them how the communist regime in the former Yugoslavia functioned, and that freedom, democracy and fair judiciary should not be taken for granted. That people have to fight for them. They also find it difficult to understand that, thirty years after democratic changes were introduced, the remnants of the former communist regime in Slovenia are very much alive and active. This is why I always say that one should fight for freedom and democracy every day again and again. Other colleagues from former communist countries have similar experience.
Many in Brussels and elsewhere have no historical memory of the period of totalitarianism and judicial system in that times. But that does not mean that totalitarianism did not exist and that we are not faced with the important specific challenges. The Resolution 1096 adopted by the Parliamentary Assembly of the Council of Europe is pointing that the old structures and thought patterns have to be dismantled and overcome. Many do not understand, and some even do not see the need to understand the history, cultural and political specifics of countries that entered into the EU after 2004. This prevents them from truly understanding the real situation, what it takes to overcome totalitarianism and what are the challenges we are faced with. The EU needs to understand that one size fits all does not and can not work. We have a common goal but paths to it have to be different, if we want everyone to reach it, since the points of departure are not the same.
– It seems, that there are growing tensions between the EU institutions and the member states on the primacy of the EU law. And it does not only concern Hungary and Poland but also Germany. How would you define an essence of this problem and how would you solve it?
The reason for these tensions lies in the fact that, while a certain area is being regulated, the principle of subsidiarity of the EU law as alid down in the Treaties applies. When the EU legislation concerning certain area is adopted, when it is applied before the national courts, the principle of primacy of the EU law becomes applicable, which has been developed through the case-law of the CJEU. As soon as EU Member States agree on a regulation, the sovereignty of a Member State changes radically. Before that point, a national lawmaker was free not to participate in the regulation of a certain area or to vote against the proposal for a new regulation. However, when the EU legislation is adopted, the lawmaker waives this freedom and relinquishes it to the final interpretation of the CJEU. The increasing awareness of the national constitutional courts, which play the role of national negative lawmakers, that this is so, does not constitute a problem with this arrangement but through specific cases draws the line between the competence of the Member States and the competence of the EU, which until now has only been determined in abstract. This is only one of the mechanisms of the system of checks and balances between individual branches of national and supranational powers, which is basically intended for the consolidation of the application of the areas that in accordance with the Treaty fall under the competence of the EU and is not intended for the expansion of the competence of the EU.
If there is a problem with any law or situation in any Member State, legal mechanisms and procedures are in place, which the European Commission can initiate. This has always been the case; in the end, a legal decision is always issued, which we must all comply with and respect.
The latest developments regarding the tensions related to the respect for the EU law are worrisome and require the leaderships of all Member States to respond seriously and responsibly. It is our joint responsibility to have an in-depth conversation, for which we must always make time, and understand the historical circumstances and starting positions of particular Member States in order to adopt the best solutions for Europeans and in particular for the future of the EU. As the country holding the presidency of the Council of the EU, Slovenia does not wish to be part of new divisions in Europe, regardless of what has caused them. I believe that the majority of EU Member States share this opinion. There have been too many such divisions throughout history. The European Union was originally established as a response of the unity and cohesion of European countries against discord and division, which had already led to devastating consequences in the history of the continent. In the time of trials and the search for answers about the future of the European Union, its Members States must always know how to return to these original and fundamental values of the Union.
Our goal is Europe – unified, free and at peace with itself. Europe capable of extending this space of freedom and high standards for protecting human rights and fundamental freedoms to its neighbourhood, because the wider and larger this space is, the safer we will be and the greater will our well-being be.
Interview of Prime Minister Janez Janša for the Polish news agency PAP (The original)
