Jernej Letnar Černič
N.B. This is an edited transcript of my talk on “The Struggle Between Rule by Law and Rule of Law in Slovenia”, Contemporary Challenges of the European Rule of Law organised on 19 May 2025 jointly by Sigmund Freud PrivatUniversität Wien and Nova univerza.
My talk today will highlight an example of a rule of law situation in Slovenia. What is going on in Slovenia is really helpful, Konrad, that you did at the beginning of your presentation; you also highlighted some of the points from the Rule of Law Report of the European Commission for 2024. And always when we talk about the rule of law in the European Union, I submit that the European Commission is the guardian of the treaties, the guardian of the rule of law. However, as Katarina Vatovec mentioned, there are some problems, not only concerning methodology, but also regarding essential criteria such as impartiality and independence in producing those reports. We saw a couple of days ago that the European Commission is not immune to abuses, as we have seen from the case of the New York Times against the European Commission concerning access to the documents.
Therefore, I will present a picture that is perhaps different from that derived from the European Commission’s annual reports. I’ll try to do this in 10 to 15 minutes, and I will try to answer, or at least highlight, three questions. The first will be on the background context and the reasons for Slovenia’s rule of law deficiencies. And then I’ll try to draw some parallels to environments in other parts of Central and Eastern Europe. Additionally, I will try to draw lessons for the future of the rule of law in Europe. And here I refer to the concept of the rule of law—a definition coined by Martin Krygier. Krygier consistently emphasises that the rule of law is about the absence of arbitrariness, both in state institutions and in the private sector. And here I make a difference between the rule of law and rule by law—rule by law being an illustration of non-democratic, totalitarian regimes.
Since the fall of the Iron Curtain, Slovenia has been considered one of the poster children of Central and Eastern Europe. Perhaps at the beginning more developed than most of the countries in the region, perhaps also the envy of many. However, more than 30 years after independence and democratisation, Slovenia can be described as a relatively underperforming pupil in Central and Eastern Europe. And here I want to highlight what is missing from the European Commission’s annual reports over the last few years, or since the start of the process concerning Slovenia.
What is quite striking is that the drafters of the annual reports on Slovenia often omit many rule of law deficiencies that are present in the daily lives of Slovenian state institutions, as well as in the private sector. And I will highlight some of them. What is striking when observing and living the daily life of state institutions in Slovenia—and here I refer not only to the current government but also to previous governments—is the systematic presence of vested interests, kleptocracy, and nepotism. And as such, the rule of law has often been replaced by the rule by law. Conflicts of interest have plagued public and state institutions, and public and private interests have often colluded to achieve their own private goals.
Perhaps the most striking is the presence of tycoons and oligarchs. For instance, tycoons and oligarchs are very much present in formerly state-owned enterprises, as well as in the media sector. Over the last 15 years, there has been a significant trend of private businessmen and companies acquiring stakes in Slovenia’s most prominent media outlets, despite this not being part of their core business activities. Over the last 15 to 20 years, companies active in the automotive industry, agricultural sector, or construction sector have begun to invest in the most prominent newspapers or media houses. All those media houses, since their purchase, have been recording losses. Of course, they bought them just to gain influence over the government. So, it involves numerous connections between business and public interests. Therefore, we also see examples of weak institutions and a weak civil society, which are heavily financially dependent on the government through projects or provisional funding. There are also examples of systematic and widespread corruption. This has also been confirmed by the supervisory institution of the Commission Against Corruption and Integrity. As a result, there are lower levels of trust in state institutions. What we have also seen is the persecution of the rule of law and human rights defenders, particularly those who are not close to the government or are openly critical of it. As I said, there is collusion of public, state, and business interests. From my description, the situation differs from what has been reported in the annual reports of the European institutions. Particularly, what we have seen is that those groups—both in state institutions and in the business sector—have created a parallel reality to advance their private interests.
That, as a consequence, has led to the creation of a culture of instant political candidates and parties, which usually arise a couple of months before respective parliamentary elections. All of a sudden, they get 30 or 40%, and usually, they last one mandate and then disappear. And the process repeats every election cycle…. As far as European institutions are concerned—with a few exceptions, notably some declarations by the European Parliament—they have turned a blind eye to the systematic erosion of the rule of law in Slovenian institutions. One particular European Union institution that is problematic is the European Commission. Although various stakeholders from civil society, academia, and other external actors have raised these issues, they have not incorporated them into their annual reports. The reasons why they have failed to include them are known only to those responsible for preparing the Rule of Law Report on Slovenia.
Just to give you some of the reasons why the rule of law has been such a challenge for Slovenia: perhaps the reason is a lack of internalization of the rule of law. It has only been a couple of decades since Slovenia transitioned to a rule of law-based society. Previously, it was a country governed by the rule of law. There may also be a lack of knowledge about the rule of law and human rights standards. Perhaps the reasons can also be found in the alleged organized criminal activity by some politicians.
It is quite striking nowadays in Slovenia that when we discuss the rule of law in Central and Eastern Europe, in countries such as the Czech Republic, Romania, or Bulgaria, we often see the presence of very affluent individuals entering politics. The current mandate of the Slovenian Parliament and government is a prime example of this. In the last three years—and two years for the President of the Republic—we have at the head of the executive branch two persons who are millionaires: both the President of the Government and the President of the Republic are millionaires. The fact that they are millionaires should not directly mean there is a deficiency in the rule of law. However, their wealth and their origins underscore the risks to the rule of law in Slovenia. The President of the Government comes from a state-owned or semi-state company; whereas the President of the Republic comes from a very affluent family.
Another fact is the presence of obedient journalists and media who do not highlight corrupt and rule-deficient practices. For example, in this mandate of the Slovenian Parliament, we can hardly find any critical investigative journalism in mainstream media about the lack of a supervisory role in the Parliament. The ruling party has captured the majority, if not all, parliamentary commissions, and the Parliament as such cannot fully supervise what the executive branch is doing. Hardly any investigative pieces or investigations into the role or meddling of the Prime Minister in the police and military forces exist. There are many challenges concerning the media—not to mention the role of the Slovenian public TV. Just yesterday, the ruling party, the Freedom Movement, held its annual meeting, and the media webpage of Slovenian national TV featured a report from that meeting as its first news of the day. So, lack of pluralism.
The reasons why these deficiencies persist include the continued presence of outdated practices and old-boy networks. But I would not only refer to post-communist networks. I would highlight the mentality and the way business is done—this is a challenge not only for the ruling party and coalition but also for the main opposition party that ran the previous government. The practices are very much the same. Therefore, these are the reasons why the challenges are significant and why access to justice is limited. I have not mentioned the judiciary—in Slovenia, only about 20 or 30% of the population trusts the judiciary.
Let me concentrate on the way forward. How to reform the situation? Perhaps constitutional reforms are needed—I’m not sure. I’m not in favour of reforming the Constitution. European institutions might play a role. Those of us who follow the rule of law in Slovenia and document what has been happening in the last decade would like to see a larger role from European institutions, particularly the European Commission. The European Commission should do more to convincingly and persuasively address the arguments that it is not objective and focuses only on some EU Member States.
There is much room for improvement in access to justice, fairness, and independence. Internalization of the rule of law—how to reform that? In our book (Matej Avbelj, Jernej Letnar Černič, The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond. Oxford, Hart (Bloomsbury), 2020) a couple of years ago, we concluded that education is the way forward. However, in a country like Slovenia, which is relatively small, like Austria, there are numerous challenges related to conflicts of interest and old-boy networks. My main suggestion would be to focus on strong normative safeguards. This includes improving and strengthening supervisory institutions, such as the Anti-Corruption Commission. They should be better funded. Currently, the Slovenian Anti-Corruption Commission has about 40–45 experts. I think they would need at least 200 or 300 experts to properly supervise conflicts of interest or lobbying in state institutions. The way forward is to insist on the rule of law, especially the smaller elements that comprise it, such as prohibitions on conflicts of interest and obligations to declare conflicts of interest and assets, which remain a problem even in more consolidated constitutional democracies.
Stožice, Ljubljana
Esohap 