Constitutional Democracy in Slovenia: Between Ideals and Post-Socialist Mentality

Slovenia celebrates today on 23 December 2021 the 30th anniversary of its constitution. It the past months it has been for a second time presiding the Council of the European Union. Slovenia has been in comparative literature lauded as a case textbook example of successful transition from a totalitarian system to a democracy. However, as Matej Avbelj, Gorazd Justinek and myself have argued in our recent book that the influence of European institutions on the democracy and rule of law in Slovenia has been in the last three decades at best partial and piecemeal (Hart Publishing, 2020). Our examination of the state of affairs in the past three decades illustrates that there is a stark contrast between the idealistic normative standards of the rule of law and constitutional democracy and systematic and general failures to implement them in the daily lives of the state institutions and public administration. This post briefly analyses the current state-of-the-art of the Slovenian constitutional democracy. It argues that it is an example of the discrepancies between the high-flying ideals of liberal democracy and post-socialist daily reality.

The rule of law challenges have not been novel in the Slovenian constitutional democracy. They have been omnipresent in the Slovenian environment since the fall of the Communist regime and subsequent creation of the Slovenian state. All three branches of the Slovenian government have in the past three decades struggled to apply the rule of law standards in practice. Such challenges have not been surprising as the Slovenian institutions were versed in the past to work on the basis of the rule by law whereby legal principles and rules have only been used to justify arbitrary decisions of totalitarian regime. As a result, State institutions have been in all three branches in the past decades traditionally weak and subject to both internal and external pressures.

As a rule, the trust of the general public in the functioning of all three branches has been traditionally low. For instance, the Slovenian judiciary often ranks among the EU Member States with the lowest percentage of trust of the general public in the independence in the functioning of courts (EU Justice Scoreboard 2020, p. 41, Fig. 44). The Slovenian judiciary has in the three decades encountered several challenges of how to ensure the effective and equal exercise of the right to fair trial. It has been characterised by the remnants of post-socialist authoritarian mentality, formalisms and conflicts of interests. It has still not opened fully to the public in order to achieve greater legitimacy and credibility of its judicial decision-making. On the contrary, the majority of judgements of ordinary courts (particularly of 1st and 2nd instances) are still not published. Its highest self-governance body, the Judicial Council, still holds sessions behind closed doors. The Slovenian judiciary since its creation in the early 1990 faced systematic challenges concerning ensuring its external and internal independence. Whistle-blowers among judges have not been effectively protected. However, the judicial governance has not only turned a blind eye to their concerns, but also engineered disciplinary proceedings against whistle-blowers. Moreover, in several high-profile cases the judiciary lent support to strong political and economic interest groups, eroding the general trust in Slovenian courts even further.

On the other hand, the legislative and executive branches have in the past shown patterns of the authoritarian legacy. The system of check and balances among different branches has been hardly operational. Out of almost 30 years of formally democratic governance in Slovenia, the post-transitional left has governed the state institution and public administration for two third of time. The position of legislative branch has been particularly weak given the legal nature of the Slovenian parliamentary electoral system that centres on political parties, not on individual candidates. As a result, such an electoral system has diminished almost any accountability link between the voters and political parties. It is a usual practice that new political parties in Slovenia establish two or three month before election, which thereafter end up winning or coming second. In most cases, they disappear after one or at best two mandates of existence in the National Assembly. The democratic legitimacy of the elections to the National Assembly was particularly affected in 2014, when the Slovenian judiciary in the Patria case sentenced the then opposition politician (and the current prime minister) to prison sentence only few weeks before the election date (the Constitutional Court later quashed the judgment and found violation of the right to impartial tribunal).

The European Institutions such as the Council of Europe and the European Union have in the first decades positively contributed to the normative reform of the rule of law and constitutions. Nonetheless, the European institutions have quickly reached the limits of their impact. They have not been able nor willing to propel the reform of legal culture, mentality and business-as-usual in the institutions of the Slovenian state. Their functioning has been characterised in the past by the presence of the post-socialist mentality, the actual and perceived conflicts of interests, nepotism, clientelism and the rise of “nouveau riche” elites and tycoons praying off the Slovenian economy. Most of Slovenian economy, as Gorazd Justinek analyses in our book, has been negatively affected due to the policies of gradualism, national interest and the triumph of the state-owned corporations. Supervisory institutions such the Commission for the Prevention of Corruption and the Court of Auditors have been in the past decades weak and have often struggled themselves with their own challenges on how to ensure prohibition of the actual or perceived conflict of interests in their own institutions. As a rule, they have not been able to provide effective supervision of the rule of law in the main three branches.

The Slovenian media landscape has been a textbook example of the post-Socialist media landscape in Central and Eastern Europe. For instance, several tycoons (that are primarily active in other industry sectors) have in the past decades entered in the ownership structures of the mainstream Slovenian media in order to advance their private vested interests and to influence public opinion. The National Public Broadcaster has been since the 1990s battleground of the different ideological and political forces as its Members of the Programme and Supervisory Boards are directly elected in the National Assembly or nominated by the respective governments. Several civil society groups and commentators have described its news programme as creating parallel realty and often succumbing to partisan interests. In the last decade, several business owners, interests’ groups and political parties have aimed to establish their own online portals mostly to advance their own particular partisan and vested interests. All in all, free and professional media standards have in the past thirty years often succumbed to partisan, ideological and ownership’ interests.

The change in government in March 2020 has triggered an energetic protests and criticism from parts of civil society and institutional elites, which has recently also attracted some international attention. Their criticism is valid particularly concerning the often questionable nature and content of tweets by the incumbent prime minister and its diplomatic relationship with Mr Orban and should be examined by the European Commission in its annual report on the rule of law. Nonetheless, no description and subsequent analysis and debates on the current state-of-the-affairs of the rule of law, constitutional democracy and media landscape in Slovenia will not be complete without diving deep in the sociology of the Slovenian institutions and public administration, universities, trade union, civil society media, etc. Moreover, a full-fledged report on the rule of law in Slovenia will have to contextually examine the ownership structures of its economy and media and will have in particularly study the impact of the institutional and informal networks of Slovenian elites on the current deplorable state of the Slovenian constitutional democracy. As Alenka Kuhelj and Bojan Bugarič submitted in their article on “A Day in the Life of Post-Communist Europe” that “the persistence of certain political practices, personalised structures, which, despite various efforts to introduce rule-bound bureaucracy and formal systems of authority, remain integral to Central and Eastern European political life” (p.184). As a result, the Slovenian constitutional democracy has been since several years located somewhere between ideals and post-socialist mentality. To be sure, Slovenia is no “poster-child” of the rule of law in Central and Eastern Europe. The reform of its constitutional democracy hinges on willingness of the Slovenian people to take ownership of liberal constitutional values and principles such as the rule of law, strong institutions, including independent and impartial judiciary and free and professional media.

Declarations of State of Emergency in the EU Member States: An Overview

This list includes declarations of a state of emergency in the EU Member States concerning the coronavirus pandemic (cut-off date : 17 April 2020, prepared by Prof Jernej Letnar Černič). 17 Member States of the EU (out of 27) have so far declared state of emergency due to the coronavirus. Three of them (Estonia, Latvia, and Romania) have notified the European Court of Human Rights that they have provisionally derogated from their obligations under the Europe Convention on the Protection of Human Rights and Fundamental Freedoms invoking its Article 15. Estonia, Lativa and Romania have also informed the Secretary-General of the United Nations that they have provisionally derogated from the International Covenant on Civil and Political Rights under its Article 4 (3).  10 states that have not so far declared a state of emergency have nonetheless adopted several preventive measures, which in many instances amount to the de facto state of emergency. This list is based on official sources wherever possible. It will be updated as the situation develops.  If you notice any errors or if you have any comments, please let me know.

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Republic of Austria: State of Emergency in place since 16 March 2020 and will last until 13 April 2020. https://www.bundeskanzleramt.gv.at/bundeskanzleramt/nachrichten-der-bundesregierung/2020/bundeskanzler-kurz-massnahmen-zur-eindaemmung-des-coronavirus-werden-bis-13-april-verlaengert.html

Kingdom of Belgium: State of Emergency in place since 13 March 2020 and will last until 19 April 2002, http://www.info-coronavirus.be/en/

Republic of Bulgaria: State of Emergency in place since 18 March 2020 and will last until 13 April, https://www.parliament.bg/en/news/ID/5056, https://www.parliament.bg/en/news/ID/5059; https://www.euractiv.com/section/coronavirus/news/belgium-enters-lockdown-over-coronavirus-crisis-until-5-april/

Republic of Croatia: State of emergency has so far not been declared, https://www.koronavirus.hr/.

Republic of Cyprus: State of Emergency in place since 16 March 2020 and will last until 30 April 2020, https://www.pio.gov.cy/coronavirus/en/index.html,

Czech Republic: State of Emergency in place since 13 March 2020 and will last until 12 April 2020, https://www.mvcr.cz/mvcren/article/state-of-emergency.aspx,

Kingdom of Denmark: State of emergency has so far not been declared, https://www.regeringen.dk/danish-governement-homepage/,

Republic of Estonia:  State of Emergency in place since 12 March 2020 and will last until 1 May 2020, derogated from Article 15 of the ECHR on 20 March 2020, https://rm.coe.int/09000016809cfa87,

Republic of Finland: State of Emergency in place since 18 March 2020 and will last until 13 May 2020, https://valtioneuvosto.fi/en/article/-/asset_publisher/10616/hallitus-totesi-suomen-olevan-poikkeusoloissa-koronavirustilanteen-vuoksi, https://valtioneuvosto.fi/en/article/-/asset_publisher/10616/hallitus-jatkaa-poikkeusoloihin-liittyvia-toimia-13-toukokuuta-saakka.

Republic of France: State of Emergency in place since 24 March 2020 and will last until 23 May 2020, https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041746313&dateTexte=&categorieLien=id

Republic of Germany: State of emergency has so far not been declared, https://www.bundesregierung.de/breg-de.

Republic of Greece: State of emergency has so far not been declared, https://government.gov.gr/enimerosi-politikon-sintakton-apo-ton-kivernitiko-ekprosopo-stelio-petsa/.

Republic of Hungary: State of Emergency in place since 11  March 2020 – onwards, https://www.kormany.hu/en/prime-minister-s-office/news/government-to-introduce-state-of-national-crisis, https://www.kormany.hu/en/the-prime-minister/news/restrictions-on-movement-to-be-imposed-in-hungary.

Republic of Ireland: State of emergency has so far not been declared, https://www.gov.ie/en/campaigns/c36c85-covid-19-coronavirus.

Republic of Italy: State of Emergency in place since 31 January 2020 and will last until 30 July 2020. https://www.gazzettaufficiale.it/eli/id/2020/02/01/20A00737/sg.

Republic of Latvia:  State of Emergency in place since 13 March 2020 and will last until 14 April 2020, derogated from Article 15 of the ECHR on 16 March 2020, https://rm.coe.int/09000016809ce9f2.

Republic of Lithuania: State of Emergency in place since 26 March 2020 and will last until 27 March (extension tbc), https://lietuva.lt/en/lithuanias-response-to-covid-19/, http://lrv.lt/en/relevant-information/coronavirus-in-lithuania/relevant-information-1/important-information-to-foreign-nationals-in-lithuania.

Republic of Luxembourg: State of Emergency in place since 18 March 2020 and will last until 18 June 2020, http://www.legilux.lu/eli/etat/leg/rgd/2020/03/18/a165/jo.

Republic of Malta, State of emergency has so far not been declared, https://deputyprimeminister.gov.mt/en/health-promotion/Pages/Novel-coronavirus.aspx.

Kingdom of the Netherlands: State of emergency has so far not been declared, https://www.government.nl/topics/coronavirus-covid-19/tackling-new-coronavirus-in-the-netherlands.

Republic of Poland: State of emergency has so far not been declared, https://www.gov.pl/web/coronavirus.

Republic of Portugal: State of Emergency in place since 19 March 2020 and will last until 2 April 2020; https://dre.pt/web/guest/pesquisa/-/search/130399862/details/normal?l=1, https://dre.pt/web/guest/home/-/dre/130473161/details/maximized.

Republic of Romania: State of Emergency in place since 16 March 2020 and will last until 15 April 2020, derogated from Article 15 of the ECHR on 20 March 2020, https://rm.coe.int/09000016809cee30

Republic of Slovakia: State of Emergency in place since 12 March 2020 until undefined date, https://www.mzv.sk/web/en/covid-19, https://newsnow.tasr.sk/policy/government-declares-state-of-emergency/, https://spectator.sme.sk/c/22356193/emergency-situation-applies-from-thursday-morning.html?ref=tab.

Republic of Slovenia: State of emergency has so far not been declared, https://www.gov.si/en/topics/coronavirus-disease-covid-19/.

Kingdom of Spain: State of Emergency in place since 14 March 2020 and will last until 26 April, https://elpais.com/espana/2020-03-14/consulta-el-real-decreto-por-el-que-se-declara-el-estado-de-alarma-en-espana.html.

Kingdom of Sweden: no state of emergency has so far been declared, https://www.krisinformation.se/en/hazards-and-risks/disasters-and-incidents/2020/official-information-on-the-new-coronavirus

Nova številka slovenske revije za človekove pravice – Dignitas, št. 83-84

Izšla je nova številka znanstvene revije Dignitas – edine slovenske revije za človekove pravice (št. 83-84)! Tokratna številka je posvečena deseti obletnici uveljavitve Listine Evropske unije o temeljnih pravicah. Zahvaljujem se gostujoči urednici Katarini Vatovec za skrbno uredniško delo in vsem avtorjem za prispevke.ovitek hrbet 17 mm-page-001-4-2

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.

 

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.

The 2015 EU Justice Scoreboard

The European Commission has recently published the 2015 EU Justice Scoreboard. The Scoreboard provides information on quality, independence and efficiency of judiciaries in all EU Member States. The Commission notes in conclusion that :

The 2015 EU Justice Scoreboard reflects the efforts undertaken by Member States to render their national justice systems more effective. It shows certain improvements but at the same time reveals that reaping the benefit of justice reforms takes time. Commitment and determination are therefore indispensable to achieve more effective justice.

A short factsheet is available here.

Fundamental Rights and Migration to the EU – From Rhetoric to Action ?

20141110_143731The Annual Fundamental Rights Conference of the European Union Agency for Fundamental Rights took place last week in Rome. This year’s conference focused on Fundamental Rights and Migration to the EU. The Annual Conference has again opened and highlighted problems of the ineffective national frameworks for the protections of rights of migrants to the EU. Laura Boldrini, President of the Italian Chamber of Deputies, for instance, noted that »politics has immense responsibility« and argued for »stronger European instruments« to prevent deaths in the Mediterranean. Smaller Eastern and Southern European states are faced with immense burden due to high influx of migrants, whereas the current EU of framework for refugee protections is almost non-existent or to say at least non-efficient. However, it is feared that words will be left again without accompanying actions. Lot of urges and calls have been heard. However, not much is expected to change as politicians, particularly from the Northern European States, have to fulfill wishes of their electorate. The FRA Director, Morten Kjaerum, therefore, observed that »no other topic more important in human rights protection in EU«. He argued that »we cannot ask small states and regions to take large burden« and that »common reception centers and more effective system of relocation could be established across EU”. A move from rhetoric to action is desperately required to prevent further deaths in the Mediterranean.

Vacancy notice for new FRA Director

The vacancy notice for the position of new Director of the European Union Agency for Fundamental Rights was published on Friday in the Official Journal of the European Union. Strangely enough, the notice only asks for 5 years of experience (out of 15 years of the required professional experience) in the field of fundamental/human rights.

Hearing of Frans Timmermans

The Civil Liberties, Justice and Home Affairs Committee of the European Parliament has earlier this week conducted the hearing of Frans Timmermans, current Dutch Minister of Foreign Affairs, and First Vice-President designate of the European Commission in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights. Here is his opening statement at the hearing :

The full video of his hearing is available here and its summary here. It seems that the candidate impressed MEP, however it remains to be seen if Juncker Commission will be approved in the end.

Motoc and Zobec discussing systemic problems of judiciary from a judge’s perspective

e8dcebfd55c9d5d7bbfc0a0f8263a6f3_MJudge Iulia Motoc of the European Court of Human Rights and Jan Zobec of the Constitutional Court of the Republic of Slovenia discussing systemic problems of judiciary from a judge’s perspective at the Conference on Crisis of Rule of Law and Democracy in Europe. Photo courtesy of demokracija.si.