Reform of Democracy 
and the Rule of Law in Slovenia

The rule of law is the fundamental basis for the functioning of any constitutional democracy in a free and democratic state. It is a precondition for a person’s self-fulfilment and a functioning economy. A strategic constitutional and actual priority for Slovenia is to lay the foundations for the functioning of a real rule of law, which need to be internalised by the people, both in the public and the private sector. The rule of law is a precondition for the functioning of all state systems, as well as its social subsystems, particularly the economy. Slovenia started its path towards the rule of law only after declaring independence in 1991. In adopting a new Constitution—despite legal continuity from the previous state—Slovenia accepted explicitly and with high political consensus the values of the rule of law and the protection of human rights, setting them at the top of its normative, constitutional and legal framework. Slovenia thereby also met the criteria for joining the Council of Europe, which confirmed in 1994 the adequacy of its normative rule-of-law framework, both formally and in terms of content. Precisely a modern normative framework, modelled on Western European states with an established tradition of the rule of law, is the greatest strength and best guarantee of lawfulness in Slovenia. However, problems arise when it comes to putting it into practice. A fundamental issue of the rule of law in Slovenia is the huge gap between the normative framework and its realisation by those entrusted with this task.

The state of constitutional democracy and the rule of law in Slovenia is alarming. Confirming this proposition requires no in-depth comparative law analysis. It suffices to take a brief look at the jurisprudence of the European Court of Human Rights, which demonstrates the degree of Slovenia’s compliance with the minimum standards of the rule of law as set down in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court’s jurisprudence shows that in Slovenia the rule of law is not actually working in all the areas essential for individuals. This is demonstrated by high-profile rulings against Slovenia in areas such as the prohibition of torture and police brutality, medical malpractice and its investigation, as well as ensuring the right to family life, in particular through appropriate engagement of social work centres. Moreover, according to the Court, anyone seeking legal protection in Slovenian courts risks a violation of his or her right to a trial within a reasonable time. As the Court has pointed out, this right is systemically violated due to inadequate legislation and inefficiency in the administration of justice. Moreover, most judicial proceedings in Slovenia are carried out selectively, meaning that people with ties to formal or informal centres of power often get a free pass. This undermines the very foundation of the formal rule of law, which builds on equality before the law. A state that fails to meet even the formal conditions of the rule of law—and equality before the law certainly is one of them—of course cannot be said to be governed by the rule of law.

This scientific publication was prepared as part of the research project entitled The Reform of Democracy and the Rule of Law in Slovenia (Slovenian Research Agency, project no. J5-7359). The general aim of this research project was to examine the state of democracy and the rule of law in Slovenia, and attempt to design reform proposals. The research analysed the influence of the Council of Europe (CoE) through the European Court of Human Rights and the European Union (EU) through the Court of Justice of the EU on the conditions for the functioning of democracy and the rule of law in Slovenia. The analysis focused on how effectively the judicial, the legislative and the executive branch of power in Slovenia protect democracy and the rule of law. Moreover, the project examined how effectively the Slovenian law protects human rights and fundamental freedoms. Here, the question was why flaws in the functioning of democracy and the rule of law in Slovenia persist despite the influence of the Council of Europe and the EU. This way, we tried to determine the inconsistencies and shortcomings in the Slovenian public sphere, and prepare proposals for correcting these flaws. The overarching aim of the research was therefore to find ways to reform the democracy and the rule of law in Slovenia.

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In terms of content, the project was divided into four separate parts. In the first part, we studied the historical reasons, especially the socialist legacy, and analysed their role in the current state of democracy and the rule of law in Slovenia. The second part focused on the endogenous factors that have been affecting—positively or negatively—democracy and the rule of law in Slovenia since 1991. This part also included an important comparative dimension, as we analysed Slovenia’s experience with the functioning of democracy and rule of law with other transition countries, as well as states that can be regarded as well-functioning societies. The last two parts were dedicated to exogenous factors. The third looked into Slovenia’s democratisation and progress in the rule of law under the influence of the European Convention on Human Rights (ECHR), while the fourth and final part analysed in the same manner the influence of the EU’s acquis communautaire.

These recommendations are the latest addition to the numerous scientific publications prepared and published as part of the project over the last three years. Since this project falls into the realm of legal theory research, which results in written academic discussion that rarely brings immediate effects in practice, the project at first had a more indirect positive influence on the society than a direct impact. Academic writing creates positive effects in the society in the long term by expanding and spreading knowledge. Initially this knowledge is limited to specialised and closed epistemic groups, but gradually it spreads to students, and through them to the wider public space. This is why the research team has decided to expand the scientific articles and monographs, which help inform experts and the public on the possibilities of reforming democracy and the rule of law, with this specialised publication, offering concrete recommendations for stakeholders in this reform area, as well as NGOs advocating the victims of alleged violations of all kinds of human rights that are assumed to have resulted from the state’s shortcomings in this respect.

 

Nova številka slovenske revije za človekove pravice – Dignitas, št. 77-78

Izšla je nova številka revije Dignitas – slovenske revije za človekove pravice (št. 77-78, 2018), ki vsebuje spodnje prispevke.

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New article on the European Court of Human Rights in ex Yugoslavia

Jernej Letnar Černič’s new article on “The European Court of Human Rights in the States of the Former Yugoslavia” has been published in the inaugural issue of the East European Yearbook on Human Rights.

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Utrinki s predavanja prof. Leacha

V torek, 15. maja 2018 ob 16h, je na ljubljanski lokaciji Evropske pravne fakultete potekala strokovna razprava o človekovih pravicah v krizi. Predaval je eden vodilnih evropskih strokovnjakov o Evropskem sodišču za človekove pravice in profesor na Univerzi Middlesex v Londonu, prof. dr. Philip Leach. Strokovno razpravo je organiziral in vodil izr. prof. dr. Letnar Černič.

Workshop on the Rule of Law, Populism and Militant Democracy in Europe 

Jernej Letnar Černič and Matej Avbelj organised between 12 and 13 April 2018 at the International Institute for the Sociology of Law in Oñati, the Basque Country, Spain, a workshop on the Rule of Law, Populism and Militant Democracy in Europe. Workshop, first dissected the current state of the rule of law, populism and militant democracy in Europe and, second, demonstrated how the liberally democratic states, based on the rule of law, should respond to the contemporary threats to themselves without denying their own very values.

Workshop 12_13 April 2018 (13)

Oñati workshop on the Rule of Law, Populism and Militant Democracy in Europe (12-13 April 2018)

Oñati workshop on the Rule of Law, Populism and Militant Democracy in Europe will take place between 12-13 April 2018 at the International Institute for the Sociology of Law in Oñati, the Basque Country, Spain.

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For some time now the European societies have been marked by extreme movements from all ideological poles who directly assault the values of democracy and the rule of law. Liberal democracies are therefore faced with challenges of how to respond to the rise of radical movements from different parts of the philosophical poles. Are European states justified to prohibit the exercise of freedom of assembly and of association, expression and religion, all with the aim of protecting the democratic and liberal order, or would be such measures disproportionate and excessive? Some argue that measures of militant democracy, as they have been known, themselves undermine the rule of law and democracy as they directly interfere with the values of pluralism, human dignity, freedom and equality. On the other hand, others argue that it is indispensable to counter the populist movements with constitutional individual actions arising from civilizational heritage of European liberal democracies. The concept of rule of law includes how a society proceeds and functions on the basis and through law. Genuine respect for rule of law is one of the key prerequisites for the functioning of a free and democratic society, as it enables and secures the exchange of different opinions, attitudes and views. Its normative protections are reflected in the provision on civil-political and socio-economic rights. The European Convention on the Protection of Human Rights and Fundamental Freedoms only specifically refers to the rule of law in the preamble, where it notes that ‘as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’.

The topic first of all addresses hard conceptual issues. The central concepts of the workshop: the rule of law, populism and militant democracy tend to figure as essentially contested concepts. To avoid speaking past each other the workshop will strive toward an incompletely theorized agreement about the shared meaning of these concept. Having passed this theoretical conceptual threshold, the concepts will applied and studied in several case-studies in national and supranational contexts. So far the questions of the rule of law, illiberal movements etc. have been addressed predominantly, if not exclusively, within the context of the nation state, either unitary or federal. The EU is neither. As a specific constitutional structure of a post-statist union it posses specific epistemic, explanatory and normative challenges of addressing and responding to the conflicts between the rule of law, populism and militant democracy.

The specific challenges, different as has typically been the case, should be addressed just through the judicial lens, but also through the lens of a legislative branch, administrative authorities, and least but not last, the civil society. The prevailing formalist approach to the rule of law should be complemented by the sociological approach that has interestingly been lacking in the legal writings about the rule of law and democracy.

Against this background, the proposed workshop will first dissect the current state of the rule of law, populism and militant democracy in Europe and, second, demonstrate how the liberally democratic states, based on the rule of law, should respond to the contemporary threats to themselves without denying their own very values.